1 







LIBRARY OF CONGRESS, 

^%-^>i — 

Chap... Copyright No, 

Shelf___._I_?__3 hH 
4*73 

UNITED STATES OF AMERICA. 



A COMPILATION 

OF TUB 

LAWS OF ILLINOIS 

RELATING TO 

Township Organization, 

AND 

GOVERNMENT OF COUNTY AFFAIRS, 

WITH 

NUMEROUS PRACTICAL FORMS. 



AND 



KOTES, BY WAY OF INSTRUCTION, SUPPORTED BY REFERENCES 
TO ADJUDICATED CASES. 



REVISED, AND ADAPTED TO THE NEW CONSTITUTION OF 1870. 




BY ELIJAH M. HALVES, 



COUXSELOR-AT-LATV, 

Compiler of Township Organization Laws of Wisconsin, Michigan, and Minnesota, ana 
Author of the Probate Manual, and a Treatise for Justices of the Peace. 



CHICAGO: 
E. B. MYERS AND COMPANY, 

LAW BOOKSELLERS AND PUBLISHERS. 
1873. 






LEGISLATIVE ENDORSEMENT. 

AN ACT in relation to the Compilation and Distribution of the General Laws of the State of 
Illinois, relative to Township Organization. 
Seotiox 1. Be it enacted by the People of the State \nf Illinois, represented in the General 
Assembly, That upon delivery to the Secretary of State, of a number of copies sufficient to 
supply each township in the State in the counties adopting township organization, with ten 
copies for each township, of a work entitled a Compilation of all the General Laws of the 
State of Illinois, relative to Township Organization, to which are added numerous practic- 
ble forms and notes, with references to decisions of the older States on questions upon like 
statutes, with a copious Index, by Elijah M. Haines, counselor-at-law, the said Secretary of 
State shall give to the said Elijah M. Haines, the compiler of said work, or to his order, a 
certificate of the delivery thereof, stating therein the number of copies so delivered, the 
number required, as contemplated by this act, to be ascertained from the records of the 
office of the Auditor of public accounts. J 

************ 
Ssc. 3. The Secretary of State shall distribute the said books among the several counties 
adopting township organization, allowing to each county a sufficient number to afford ten 
copies to each township therein, which shall be transmitted by the Secretary of State to 
the several county clerks of said counties, to be distributed among the several town officers 
as the Board of Supervisors shall order. . . 

Sbo. 4. This act to take effect and be in force from and after its passage. 

THOS. J. TURNER, 
Speaker of the House of Representatives. 
G. KOERNER, 
Speaker of the Senate. 
Approved February 9, 1855 

J. A. MATTESON. 



Entered according to Act of Congress, in the year 1855, 

Bt ELIJAH M. HAINES, 

In the Clerk's Office of the District Court for the Northern District of IHiaow. 



Entered according to Act of Congress, in the year 1873, 

By ELIJAH M. HAINES, 

In the Office of the Librarian of Congress, at Washington. 



Electrotyped by 

Shnikdewend, Lee & Co., 

Chicago, 111. 



ADVERTISEMENT. 



This compilation was thoroughly revised in 1870 and adapted ot 
the 2V«e Constitution, since which the Legislature has made numerous 
important changes in the law relating to Township Organization and 
the management of County Affairs, especially the law in regard to 
Roads and Bridges, Elections and Assessment and Collection of 
Taxts. These changes in the law have entirely superseded all 
former editions of this book and rendered the present one neces- 
sary. It is expected that the Legislature will continue the work of 
revision of the laws — adapting them to the requirements of the new 
Constitution. This compilation cannot be expected to be complete 
in all respects until such work of revision of the laws is finished. It 
will be the aim of the compiler to bring out corrected editions of 
-this book whenever demanded by any material changes in the law. 
should any occur ; and no pains will be spared to make the work 
complete, that its reputation as the only reliable guide for town offi- 
cers in the discharge of their duties, may be maintained. It is a 
publication of lodg standing, and the only one of the kind in exist- 
ence. A work upon any other plan would fail of the object for which 
such a book is intended. In addition to the superior merits of this 
compilation — further evidenced by its unprecedented sale of fifty 
thousand copies — it must be borne in mind that its publication is 
authorized by law, making it the only legal guide for all public offi- 
cers. 

Oct. 15, J873. 



ERRATA. 

Some errors have occurred in this book, which were discov- 
ered too late for correction. They are found on pages 56, 57, 
59,' 60, 68, 96 and 99, and relate to post and ante pages. 
References given in connection therewith will generally indi- 
cate the pages intended. The act of Feb. 12, 1849, frequently 
referred to, will be found at page 64. 



PREFACE 

PREFACE TO EDITION OP 1870. 

The first edition of this compilation was published in 1855. Before 
publication the plan of the work was laid before the General Assembly 
of the State, who considered the subject so favorably that they ordered 
a number of copies sufficient to supply each township in the State with 
ten copies, making in the aggregate about eight thousand copies. The 
work was received with such favor by public officers and citizens, gener- 
ally, that the entire sale has now reached about fifty thousand copies. 

The peculiar features of this work are, — 1. It presents all the statute 
law on the subject of Township Organization, or that has any connection 
therewith, collected together in one volume, in methodical and convenient 
form for reference. 2. It gives a full and complete collection of forms for 
proceeding under the law. 3. It gives by way of notes, full instructions 
in regard to every branch of the law, clearly expressed and supported 
by references to judicial decisions. 4. It presents the law, the forms, 
and the notes, where they relate to a given subject, on the same page, and 
in immediate connection. It is this arrangement, which the compiler 
himself originated, that contributes in giving the work its great value, 
as a useful and indispensable book for all public offices under the town- 
ship organization system, and the important matter it contains renders 
it valuable for every citizen and tax payer in the State. 

The plan of the work, as stated, being original with the compiler, he 
has secured the benefits thereof, .together with the matter therein, 
prepared by himself, under the copy right laws of the United States. 

There has been no thorough revision of this work since 1861, until the 
present edition. Since that time many important acts relating to town- 
ship organization have been passed, and many former provisions have 
been repealed. Besides numerous decisions have since been made by 
the Supreme Court of the State, bearing materially upon various provis- 
ions of the law. These, with the important changes made by the pro- 
visions of the New Constitution of the State, recently adopted, have rendered 
a thorough revision of the work necessary at this time. 



Vlll PKEFACE. 



Notes of all the decisions of the Supreme Court of Illinois, relating 
to the laws which the compilation embraces, are given down to volume 50 
of the Reports, also notes of the decisions of other States, which were 
found applicable. There is also added notes of all opinions given by the 
State Auditor of public accounts in regard the Revenue Laws of the State, 
which are by law made binding upon public officers. These decisions 
have never before been published. They were obtained by the compiler 
at considerable expense, and are here given to the public for the first 
time, in form for general use. 

ELIJAH M. HAINES. 

Chicago, III., October 1, 1870. 



PLAN OF THIS COMPILATION AND EXPLANATIONS. 

For information as to the matter contained in this compilation, reference will be had to 
the Table of Contents following. 

The various subjects embraced, have been classed under separate heads, entitled Divisions, 
each Division comprising as far as practicable a distinct subject. 

The main features of the Township Act, comprised in Division IV., remain as enacted by 
the General Assembly in 1851; the subsequent changes are noted in the margin at the side 
of the section, by figures indicating the year of the session at which the changes or amend- 
ments were made. Wherever those indications occur, it denotes that the section against 
which they occur are wholly new provisions, or have been to some extent amended ; those 
sections against which such indicates do not occur, remain as enacted in 1851. 

References likewise appear iu the margin of other acts and sections, showing from whence 
they are taken. 

A new feature of the present edition is the addition of notes of opinions given by the State 
Auditor of public accounts, which, by the Revenue Law of 1853, are made binding upon 
public officers. 

Reference is also made in many instances to the opinions of the Attorney General of 
Minnesota, where they were found applicable, which opinions are made the rule of action 
by the laws of that State, until reversed by the courts. 

Words supplied in brackets [ ] are to correct supposed errors in the text of the law. 

N. B. Some few clerical errors have been found in the following pages, too late however to 
make corrections, but it is believed that they are such as to suggest their own correction 
without the necessity of pointing them out specially 



TABLE OF CONTENTS. 



DIVISION I. 

TAGE. 

Elections 17-55 

DIVISION II. 
Counties and County Affaies 56-94 

DIVISION III. 
County Treasurer and County Funds 95-100, 

DIVISION IV. 
Revenue 101-190 

DIVISION V. 
Township Organization— Act 1S61 191-260 

DIVISION VI. 

Roads and Bridges in Counties under Township Organi- 
zation 261-333 

DIVISION VII. 
Drainage 335-340 

DIVISION VIII. 
Inclosures and Fences 341-357 

DIVISION IX. 

Mutual Fire Insurance Companies 358-363 

DIVISION X. 
Paupers 364-374 

DIVISION XI. 
Idiots and Lunatics 375-3S1 « 

DIVISION XII. 
Weights and Measures 382-385 

DIVISION XIII. 
Miscellaneous 3S6-38S 



A LIST OF JUDGES AND OFFICEKS 

Of the Courts, as organized wider the New Constitution of 18 70. 



SUPREME COURT. 

Hon. SIDNEY BREESE, Chief Justice, - Carlyle. 

ASSOCIATE JUSTICES. 

Hon. PINKHEY H. WALKER, - - Rushyille. 

Hon. BENJ. R. SHELDON, - - Galena. 

Hon. WM. K. McALLISTER, - - Chicago. 

Hon. JOHNM SCOTT, - - Bloomington. 

Hon. JOHN SCHOLFIELD, - - Marshall. 

Hon. ALFRED M. CRAIG, - - Knoxyille. 

NORMAN L. FREEMAN, Esq., Reporter, Springfield. 

CLERKS. 

Northern Division. 

C. D. TRIMBLE, Esq., - - - Ottawa. 

Central Division. 
E. C. HAMBURGHER, Esq., - - Springfield. 

Southern Division. 
R. A. D. WILBANKS, Esq., - - Mt. Vernon. 



COURTS OF RECORD OF COOK COUXTY. 

CIRCUIT COURT. 

JUDGES. 

Hon. W. W. FAR WELL, Chief Justice. 
Hon. E. S. WILLIAMS. Hon. HENRY BOOTH, 

Hon. JOHN G. ROGERS, Hon. LAMBERT TREE. 

CLERK. 

JACOB GROSS, Esq. 
SUPERIOR COURT. 

JUDGES. 

Hon. WM. A. PORTER, Chief Justice. 
Hon. , OHN A. JAMESON. Hon. JOSEPH E. GARY. 

CLERK. 

ALEX. F. STEVENSON, Esq. 
After November 19, A.D. 1873. 

COUNTY COURT. 

JUDGE. 

Hon. M. R. M. WALLACE. 

CLERK. 

JOSEPH POLLAK, Esq. 



THE TOWNSHIP ORGANIZATION SYSTEM. 



TnE system of Township Organization, so-called, is a system 
or institution having its origin in the New England States; and, 
as the people of those states have migrated westward, it has been 
carried into most of the northern and western states. It is simply 
a system by which the territory of each county is divided into 
convenient districts, called towns, or townships, which become a 
species of bodies corporate, or, as they are more commonly styled, 
quasi corporations. The object and practical results of this system 
is to bring the local affairs of the county under the immediate 
control and direction of the people. In this respect it not only 
becomes the life and soul of a free government, but it becomes an 
institution for the practical education of the people in the princi- 
ples of that system of government, — the peculiar features of the 
system being that every voter of the township is required to 
assume a direct responsibility in the administration of local public 
affairs. 

Xo scheme, having much similarity to our present system of 
township organization, is found in ancient history. The municipal 
divisions of Athens and other ancient republics were rather into 
castes or social ranks, than territorial ; although the " demes " of 
ancient Athens, the Roman and Grecian colonies, and at a later day 
the free cities of mediaeval Europe, possessed more or less of the 
privileges of self-government, such as election of officers, manage- 
ment of funds, and the like. These cases, however, are exceptions; 
isolated instances of the universal instinct for self-government 
which is born with all men, but repressed under non-elective and 
irresponsible governments. 

In England, about A. D. 871, King Alfred, to prevent the 
rapines and disorders which prevailed in the realm, instituted a 
system of territorial division, which probably contains the first 
germ of our American idea of a township. This was, a division 
of the kingdom into " tithings," an Anglo-Saxon term equivalent 
to " tenthings," or groups of ten. Each tithing was the area 
inhabited by ten contiguous families, who were " frankpledges/' *. e., 
free pledges or sureties, to the king for each other's good beha- 
vior, and were bound to have any offender within their district 



Xll TOWNSHIP ORGANIZATION SYSTEM. 



forthcoming. One of the principal inhabitants of the tithing was 
annually appointed to preside over it, entitled tithingman or head- 
borough, being supposed the most discreet man within it. As ten 
families constituted a tithing, so ten tithings formed a hundred, 
governed by a high constable or bailiff; and an indefinite number 
of hundreds composed a shire or county. 

Tithings, towns or vills were, by the laws and customs of Eng- 
land, of the same signification ; but the word town or vill has, it 
seems, by the alteration of time and language, now become, in that 
country, a generical term, comprehending, under it the several species 
of cities, boroughs, and common towns. A city originally signified 
a town incorporated, which was, or had been, the see or seat of a 
bishop. A borough was understood to be a town, either corporate 
or not, that sent burgesses to parliament. 

The word town, strictly speaking, applies to a collection of houses 
having a population to that extent that the inhabitants are pre- 
sumed to act as a body corporate for municipal regulations. But 
the word township applies to a territorial division of country, with- 
out reference to a compact condition of dwellings. The word ship, 
as here used, probably comes from the Dutch schip or Anglo-Saxon 
scyppen, to mould, form, shape, which, when added to the word 
town, in this connection, signifies the shape or outward boundaries 
which have been given to the town. 

The adoption of the township organization system in New Eng- 
land was the result of circumstances rather than of design. It is 
stated that before the first emigrants disembarked from the ship 
Mayflower they found much discord to exist on the part of " some 
of the more ignorant sort," who declared that when they reached 
the shore there would be plenty of room, and one man would be 
as good as another, and if they were to have no voice in ordering 
matters they could step out into the woods and order things to suit 
themselves. 

" Such was the talk which reached the ears of the leading men, 
and they saw that to deny these men — though they were servants 
— a voice in directing their own common affairs, would be not only 
unjust but unwise. They foresaw the evils and dangers of divisions 
to the infant colony, and they decided to anticipate them — not to 
wait, as most men do, till the people, stung by madness, rush into 
mischief." The whole body of the emigrants for the "new 
world " were therefore convened in the cabin of the vessel, and the 



TOWNSHIP ORGANIZATION SYSTEM. Xll) 

terms of a compact for the regulation and government of civil 
conduct was agreed upon and reduced to writing, to which all sub- 
scribed their names. The compact, after reciting its general object 
and declaring the parties thereto formed " into a civil body politic," 
concluded as follows : " And, by virtue hereof, to enact, constitute 
and frame such just and equal laws, ordinances, acts, constitutions 
and offices, from time to time, as shall be thought most meet and 
convenient for the general good of the colony, unto which we 
promise all due submission and obedience." 

This compact was signed by forty-one men, who constituted the 
electors of the first commonwealth established in New England, 
numbering, with their families, one hundred and two persons. It 
is likewise the first germ of popular government now existing as 
the government of the United States. 

The persons constituting this new government were dissenters 
from the Church of England, and as such had adopted a plan of 
church government on the principle of equal rights and privileges 
among the members in conducting church affairs. Thus, in adopt- 
ing this form of civil government, they but^extended this principle 
as among the civil rights of citizens, or, as the historian expresses 
it, " Out of this self-government in the church grew self-govern- 
ment in the state, democracy and the representative system." 

These men had been educated to consider that the government 
of the state was subordinate to the church, and it was not easy for 
them, from their crude notions of the policy of civil government 
to separate one from the other. It was, therefore, some time before 
any separate action, distinct from the usual church proceedings 
was had in regard to affairs pertaining to civil government. The 
first instance is said to have occurred on the 22nd of March follow- 
ing their landing, which was a meeting called for making military 
arrangements for the defence of the colony against the Indians, 
and the election of governor for the ensuing year. This was the 
first town meeting held in the colony. The governor was chosen for 
one year, and thus probably originated the custom of holding these 
meetings in the spring of the year, as is the case in most of the 
states having the township system, at the present day. 

The Puritans, not wishing to adopt any of the forms of the 
church from which they had dissented, styled their assemblies for 
religious worship, simply, " meetings/' and their houses of worship, 
"meeting-houses," hence their assemblies of electors, or freemen, 



XIV TOWNSHIP ORGANIZATION SYSTEM. 

for directing public affairs they styled " town meetings," as distin- 
guished from their religious meetings ; and the place of meeting — 
usually in a building erected by the town for that purpose — they 
have called the " town house." 

As other immigrants arrived they found it necessary to move off 
and settle at some distance from settlements already made, but, for 
the purpose of protection against the Indians, a number of families 
settled near to each other, in the midst of which was the meeting 
house of the congregation. 

A writer on the subject says : " This clustering system prevailed 
until after the extirpation of the Indian tribes and the establish- 
ment of passable roads. Thus New England grew up a congeries of 
towns/' The principle of self-government and equality of political 
rights, set forth in the original compact, was observed by all, and 
each town, in their local assemblies, or town meetings, directed the 
administration of all local affairs ; but, for the purpose of greater 
harmony, a general court was established, composed of delegates or 
members chosen from the several towns, and here originated the 
institution of a state legislative body, as existing, and perfected in 
the several states of the Union at the present day, and the plan of 
the county board of supervisors existing in New York, Illinois 
and other states. 

At first it seems that these towns of New England were what 
the word imports, a collection of houses; but, as the danger of 
depredations from the Indian tribes decreased, the settlement of 
families extended promiscuously over the country, creating a neces- 
sity for defining the boundaries of the jurisdiction of each town, 
and this seems to have given rise to the idea of our present per- 
fected system of territorial divisions, called townships; and the plan 
of township' organization, as experience proved its remarkable 
economy, efficacy and adaptation to the requirements of a free and 
intelligent people, became universal throughout New England, and 
went westward with the emigrants from thence into New York, Ohio 
and other western states, including the northern portion of Illinois. 

But a different policy determined the character of the municipal 
institutions of the southern states. This was the " county system." 
This plan originated with Virginia, whose early settlers soon became 
large landed proprietors, aristocratic in feeling, living apart in 
almost baronial magnificence on their own estates, and owning the 
laboring part of the population. Thus the materials for township 



TOWNSHIP ORGANIZATION SYSTEM. XV 

organization were not at hand, the voters being thinly distributed 
over a great area. The county organization, where a few influential 
men managed the whole business of the community, retaining their 
places almost at their pleasure, and permitted to conduct the county 
concerns as their own ideas or wishes might direct, was moreover 
consonant with their recollections or traditions of the judicial and 
social dignities of the landed aristocracy of England, in descent 
from whom the Virginia gentlemen felt so much pride. In 1634, 
eight counties were organized in Virginia; and the system, extend- 
ing throughout the state, has spread into all the southern states, 
unless we except the nearly similar division into "districts" in 
South Carolina, and that into " parishes," retained by Louisiana 
from the French laws. 

Illinois, which with a vast additional territory, became a county 
of Virginia on its conquest by G-en. George Rogers Clark, retained 
the county system until the constitution of 1848. Under which, 
as in other states adopting it, most local affairs were managed by 
three commissioners in each county, who constituted a county court, 
with quarterly sessions. During the period ending with the consti- 
tutional convention of 1847, a large portion of the state had become 
filled up with a population of New England birth or character, daily 
growing more and more compact and dissatisfied with the compar- 
atively arbitrary and inefficient county system. Under the influence 
of this feeling, the constitutional provision of 1848, and subsequent 
law of 1849 were enacted, permitting counties to adopt a township 
organization; according to which all the counties north of the 
Illinois river, and a large number south of it, have so organized. 

The main argument for township organization is, perhaps, its 
extreme value as a school of political action. The clearest and best 
writer on American institutions, Alexis de Tocqueville, in his cele- 
brated work, "Democracy in America," says: "Local assemblies 
of citizens constitute the strength of free nations. Municipal insti- 
tutions are to liberty what primary schools are to science ; they 
bring it within the people's reach; they teach men how to use and 
how to enjoy it." These small independent republics, with their 
unlimited sovereignty in matters of local concern, are the cradles 
and nurseries of that habit of political debating and acting, which 
is the indispensable training of an intelligent and useful citizen. 

It is not claimed, of course, that each township should exercise 
so unbounded an authority as belonged to the ancient republics; 
but only that they should use it in reference to local matters, which 



Xvi TOWNSHIP ORGANIZATION SYSTEM. 



interest them only, and which no others can understand or direct so 
well. In the immense territories which form the states of the 
Union, or in the Union itself for federal concerns, it is impossible 
for all the voters to meet and transact the business of government. 
Hence that modification of a "pure democracy," which has given 
us our representative system of government. If such a universal 
meeting were conveniently practicable, it would be practiced; in 
that case, no voter would delegate by authority ; but it is not. In 
town business, however, it is practicable. The people of a town- 
ship can readily meet for conference, and discuss and decide all the 
multitude of local interests which concern their township, with a 
far better understanding of them than any agent or representative 
could exercise. 

The great extent of the territory of the state of New York, from 
which the township system as adopted in this state is chiefly derived, 
rendered it impossible or at least impracticable to send a representa- 
tive from each town to the popular branch of the state legislature, 
as was done in the New England states. Under these circumstan- 
ces, an intermediate board was created in each county, called a board 
of supei'visors, and composed of one delegate from each town.' This 
board formed a deliberative, or kind of legislative body, taking a 
large portion of the powers delegated in the New England states to 
the state legislatures. It has been made an objection to this plan 
of organization, that it increases the expense of transacting the busi- 
ness of the county. But the answer is believed conclusive ; that 
the only additional expense, if any, arises from the excess of compen- 
sation paid to the additional members of the county board ; while 
the fact is that the business of the county is much reduced under 
the town organization, and not one-fourth of the time is required 
to transact the business. Besides, a cheap government is not neces- 
sarily the best. Cheapness is not the primary object in choosing a 
government, but excellence. If cheap government were the only 
thing required, we should abolish the legislative branch of our state 
government, and leave our laws to be made by the executive or the 
supreme court. Or, which would be still cheaper, perhaps, we 
could let out the making of our laws by contract and competition 
to the lowest bidder, or to whomsoever would pay the state most 
for the privilege. There would be no want of proposals. 

As before observed, the township system as adopted in this state, 
is the same as that of the state of New York, which differs some- 
what from that of New England, and may, perhaps, be considered 
to some extent an improvement upon the system in those states. But 
in all these states, various questions have from time to time arisen 
under the peculiarity of the law, for the determination of the courts; 
the adjudications of which may be gathered from the reports of cases 
determined, and serve as a precedent or guide for such other states 
as may adopt a like system. Hence, it has been the aim in this 
work, to add full notes with references to those cases, together with 
those of our own state, which will serve not only to guide the inex- 
perienced, but may be of much service to the profession by furn- 
ishing a ready reference to adjudicated cases. 



LAWS OF ILLINOIS 

RELATING TO 

TOWNSHIP ORGANIZATION 

AND 

GOVERNMENT OF COUNTY AFFAIRS. 



DIVISION I. 
ELECTIONS. 

ELECTORS OF PRESIDENT AND VICE-PRESIDENT OP UNITED 

STATES. 

Section 1. There shall be elected, by general ticket, on thei.Awi87i-72, 
Tuesday next after the first Monday in November preceding Aprfs,' *72Y P * 

the expiration of the term of office of each president of the v — -v ' 

United States, as many electors of president and vice-presi-pj^-ggntlna 
dent of the United States as this State may be entitled to vice-president. 
elect — which election shall be conducted and returns thereof 
made, as hereinafter provided : Provided, that if Congress Proviso. 
should hereafter fix a different day for such election, then 
the election for electors shall be held on such day as shall 
be named by act of Congress. 

Sec. 2. The county clerks of the several counties shall, within Abstract of 
eight days next after holding an election for electors of presi- terete* befranV 
dent and vice - president of the United States, as is provided ™ y^no? the 
for in this act, make three copies of the abstract of votes for 
electors, and transmit by mail one of said copies to the gov- 
ernor, another to the office of the secretary of state, and retain 
the third in his office, to be sent for by the governor in case 
both the others should be mislaid. Within twenty days after Governor with 
the holding of such election, and sooner if all the returns are cers e to S can\^s" 
received by either the governor or by the secretary of state, the Jedare'The 
secretary of state, auditor of public accounts and treasurer, or result, 
any two of them, shall, in the presence of the governor, pro- 
2' 



18 



ELECTIONS. 



[DIV. I. 



Tie vote, how 
decided. 



ceed to open and canvass said election returns, and to declare 
the persons having the highest number of votes elected ; but 
should any two or more persons be returned with an equal 
and the highest vote, the said secretary of state shall cause a 
notice of the same to be published, which notice shall name 
some day and place, not less than five days from the time of 
the publication of such notice, upon which the said secretary, 
auditor and treasurer will decide, by lot, which of said persons 
so equal and highest is elected. And upon the day, and at 
the place so appointed in said notice, the said secretary, audi- 
tor and treasurer, or any two of them, shall, in the presence of 
the governor, decide, by lot, which of the persons so equal and 
highest shall be elected. 

Sec. 3. The governor shall cause the result of the said election 
to be published, and shall transmit by mail to the persons 
elected certificates of their election. 

Sec. 4. The electors chosen, as aforesaid, shall meet at the seat 
of government of this state, at the time appointed by the laws 
of the United States, and give their votes in, in the manner 
therein provided, and perform such duties as are or may be 
required by law. Each elector shall receive for every twenty 
miles necessary travel in going to the seat of government to 
give his vote, and returning to his residence, to be computed 
by the most usual route, the sum of three dollars, to be paid 
on the warrant of the auditor, out of any money in the treasury 
not otherwise appropriated. 

Sec. 5. In case any person declared duly elected an elector of 
president and vice-president of the United States shall fail to 
attend at the state house, at the seat of government of this 
State, at or before the hour of twelve o'clock, at noon, of the 
day on which his vote is required to be given, it shall be the 
duty of the elector or electors of president and vice-president, 
attending at that time and place, to appoint a person or per- 
sons to fill such vacancy : Provided, that should the person or 
persons chosen by the people, as aforesaid, arrive at the place 
aforesaid before the votes for president and vice-president are 
actually given, the person or persons appointed to fill such 
vacancy shall not act as elector of president and vice-presi- 
dent. 



Governor to 
cause result to 
be published. 



Electors to 
meet and give 
their votes. 



Compensation 
of electors. 



Vacancy in 
electoral col- 
lege, how 
filled. 



Proviso. 



TIME OF HOLDING ELECTIONS FOR CERTAIN OFFICERS. 



Representa- Sec. 6. Representatives in Congress shall be elected on Tues- 

day next after the first Monday in November, A.D. eighteen 
hundred and seventy -two, and every two years thereafter: 



DIV. I.] TIME OF HOLDING ELECTIONS FOR CERTAIN OFFICERS. 19 

but if Congress shall fix a different day, then such election 
shall be held on the day so fixed by Congress. 

Sec. 7. The governor, lieutenant-governor, secretary of state, Time of eiec- 
auditor of public accounts and attorney -general, shall be officers? 1 * 10 

ed on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy-two, and every four years 
thereafter. 

Sec. 8. The superintendent of public instruction shall be sup't of public 
elected on Tuesday next after the first Monday of November, ins t ru ction. 
A.D. eighteen hundred and seventy -four, and every four 
years thereafter. 

Sec. 9. The state treasurer shall be elected on Tuesday next state treasurer. 
after the first Monday of November, A.D. eighteen hundred 
and seventy-two, and every two years thereafter. 

Sec. 10. The judges of the supreme court shall hereafter be Election for 
elected as follows, to wit: In the first, second, third, sixth and preme court", 
seventh districts on the first Monday of June, A.D. eighteen 
hundred and seventy-nine, and every nine years thereafter. 
In the fourth district, on the first Monday of June, A.D. 
eighteen hundred and seventy-six, and every nine yeaus there- 
after. In the fifth district, on the first Monday of June, 
A.D. eighteen hundred and seventy-three, and every nine 
years thereafter. 

Sec. 11. A clerk of the supreme court in each grand divi-cierksofsu- 
sion shall be elected on Tuesday next after the first Monday preme court - 
of November, A.D. eighteen hundred and seventy-two, and 
every six years thereafter. 

Sec. 12. The judges of the circuit court shall be elected on For judges of 
the first Monday of June, A.D. eighteen hundred and seventy- circmt court * 
three, and every six years thereafter. 

Sec. 13. The judges of the superior court of Cook county law ip, 
shall be elected as follows : One on Tuesday next after the vlfoi. e 
first Monday of November, in the year of our Lord eighteen For judges of 
hundred and seventy -three, and every six years thereafter ; court U of e cook 
one on Tuesday next after the first Monday of November, in county, 
the year of our Lord eighteen hundred and seventy-five, and 
every six years thereafter; and one on Tuesday next after the 
first Monday of November, in the year of our Lord eighteen • 
hundred and seventy-seven, and every six years thereafter. 

Sec. 14. State senators shall be elected as follows, to wit : For state sena- 
Those in districts bearing even numbers shall be elected on ors ' 
Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and every four years 
thereafter. Those in districts bearing odd numbers shall be 
elected on Tuesday next after the first Monday of November, 



20 



ELECTIONS. 



[DIV. I. 



For members 
of the house of 
representa- 
tives. 



For sheriffs 
and coroners. 



For clerks of 
circuit court. 



A.D. eighteen hundred and seventy-two, for the term of two 
years. And after that they shall be elected on Tuesday next 
after the first Monday of November, A.D. eighteen hundred 
and seventy-four, and every four years thereafter. 

Sec. 15. Members of the house of representatives shall be 
elected on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy-two, and every two years 
thereafter. 

Fu dge°ana 7 Sec - 16 - Tne county judges and county clerks shall be elected 

county clerk. n Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -three, and every four years 
thereafter. 

Sec. 17. The sheriffs and coroners shall be elected on 
Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy-two, and every two years there- 
after. 

Sec. 18. The clerks of the circuit court shall be elected 
on Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and every four years 
thereafter. 
For clerk of Sec. 19. The clerk of the superior court of Cook county 

sapenorcou ^-q ^ e elected on Tuesday next after the first Monday of 
November, A.D. eighteen hundred and seventy -five, and 
every four years thereafter. 

Sec. 20. The clerk of the criminal court of Cook county 
shall be elected on Tuesday next after the first Monday of 
November, A.D. eighteen hundred and seventy -three, and 
every four years thereafter. 

Sec. 21. The county treasurers shall be elected on Tuesday 
next after the first Monday of November, A.D. eighteen hun- 
dred and seventy -three, and every two years thereafter. 

Sec. 22. The county surveyors shall be elected on Tuesday 
next after the first Monday of November, A.D. eighteen hun- 
dred and seventy-five, and every four years thereafter. 

Sec. 23. The county superintendents of schools shall be 
elected on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy -three, and every four 
years thereafter. 

Sec. 24. A state's attorney shall be elected in each county 
on Tuesday next after the first Monday of November, A.D. 
eighteen hundred and seventy -two, and ©very four years 
thereafter. 

Sec. 25. There shall be elected in each congressional dis- 
trict on Tuesday next after the first Monday of November, 
A.D. eighteen hundred and seventy -two, and every four 



Clerk of crim- 
inal court of 
Cook county. 



County 
treasurers. 



County sur- 
veyor. 



County sup'tof 
schools. 



State's attor- 
ney. 



State board of 
equalization. 



D1V. I.] JUDGES AND CLERKS OF ELECTION. 21 

years thereafter, one elector, to serve as a member of the state 
board of equalization. 

Sec. 20. In counties having a population of sixty thousand Recorder of 
or more, there shall be elected a recorder of deeds, on Tuesday deeas * 
next after the first Monday of November, A.D. eighteen hun- 
dred and seventy -two, and every four years thereafter. 

Sec. -7. In counties not under township organization, there county asses- 
shall be elected on Tuesday next after the first Monday of sor ' 
November, A.D. eighteen hundred and seventy -three, and 
every two years thereafter, a county assessor, who shall hold 
his office for two years, and until his successor is elected and 
qualified. 

Sec. 28. In counties not under township organization, there county Com- 
shall be elected on Tuesday next after the first Monday of missioner - 
November, A.D. eighteen hundred and seventy -three, three 
officers, who shall be styled " The Board of County Com- 
missioners," one of whom shall hold his office for one year, 
one for two years, and one for three years, to be determined 
by lot ; and every year thereafter, one such officer shall be 
elected in each of said counties, for the term of three years. 

election precincts. 

Sec. 29. The election precincts established in counties not Election pl- 
under township organization, before the taking effect of this S^not under 1 " 
act, shall remain until changed by the county board. t anEfation° r " 

Sec. 30. The county board of such counties may, from Boundaries of, 
time to time, change the boundaries of election precincts, and £°^ £££ £1^7 
may erect and establish one or more new election precincts, 
and may designate and change the places of holding elections. 
All general and special elections shall be held at the places so 
designated. 

Sec. 31. In counties under township organization, each in counties un 
town shall constitute an election precinct, but the county organization? 
board may divide any town into as many election districts as |fe5io°n V pre- a 
the convenience of the people may require, defining the samecinct. 
by distinct boundaries and numbers, and may, from time to 
time, designate the places at which elections shall be held. 
All general and special elections shall be held at the places 



so designated. 



JUDGES AND CLERKS OF ELECTIONS. 



Sec. 32. In counties not under township organization, the Judges and 
county board shall, annually, at its last regular session pre- Sons? ofe ' e(> 



ELECTIONS. [DIV. I. 



la counties not ceding the general election, appoint three capable and discreet 
%ani2SoS Lip electors to act as judges of election in each election precinct, 

and may at any time fill vacancies. (1) 
in counties un- Sec. 33. In counties under township organization, whore 
organisation* *ke county board shall have divided a town into several elec- 
countybd to tion districts, it shall, at its last regular session preceding the 
oFeiection in general election, appoint three capable and discreet electors to 
new districts. act ag j u( jg es of election in each election district in such town, 
Proviso as to and may at any time fill vacancies : Provided, that the super- 
appointed, visor, assessor and collector shall be designated as judges of 

election in the districts in which they respectively reside. 
Notice of ap- Sec. 34. Immediately on the appointment of such judges, 
poji ent. ^.| ie count y c l er k shall make out and deliver to the sheriff of 
the county a notice thereof, directed to each person so ap- 
pointed, and the sheriff shall, within twenty days after the 
receipt of such notices, deliver the same to the several judges 
so appointed. 
Termofser- Sec. 35. The judges so appointed shall be and continue 
vice. ^ judges of all general and special elections held within their 

respective precincts or districts, until other judges shall be 
appointed in like manner. 
Vacancies, how Sec. 36. If, at the time for the opening any election, any 
filled. person appointed or constituted a judge of election shall not 

be present, or will not act or take the oath to act in such 
capacity, the judge or judges present may appoint some other 
qualified elector to act in his place. If there be no judge of 
election present, or he refuses to act, such electors of the pre- 
cinct or district as may then be present at the place of election, 
may fill the places of such judges by election from their num- 
ber. The judges so appointed shall have the same power and 
be subject to the same penalties as other judges of election, 
judges of eiec- Sec. 37. The judges of election shall choose two persons 
poiitcierks" naym g similar qualifications with themselves to act as clerks 
of election, who may continue to act as such during the plea- 
sure of the judges. (2) 

OATH OF JUDGES AND CLERES OF ELECTION. 

Oath of judges Sec. 38. Previous to any votes being taken, the judges and 
eTection rkS ° f clerks of the election shall severally take an oath or affirma- 



tion, in the following form, to wit: 



(1) A person who is a candidate at an election is not thereby disqualified as judge 
of election. Opinion Att'y Gen'l Cole (Minn.), vol. 1, p. 449. 

(2) It is held in New York that the statute requiring the judges of election to 
appoint clerks is directory. If no person can be procured to act in that eapaci*y»the 
election is not to fail. The judges may perform the duty which ordinarily devolves 
upon the clerks. People v. Cook, i Seld. R., 67. 



DIV. I.] CONSTABLES APPOINTED TO ATTEND ELECTIONS. 23 

'• I do solemnly swear [or affirm, as the case may be] that I will 
support the Constitution of the United States and the Constitution of 
the State of Illinois, and that I will faithfully discharge the duties of 
the office of judge of election [or clerk, as the case may be~\ according 
to the best of my ability." 

Sec. 39. In case there shall be no judge or justice of the oath, by whom 
peace present at the opening of the election, or in case suc h admiru5tered - 
judge or justice shall be appointed a judge or clerk of election, 
it shall be lawful for the judges of the election to administer 
the oath or affirmation to each other, and to the clerks of the 
election ; and the person administering such oath or affirmation 
shall cause an entry thereof to be made and subscribed by 
him, and prefixed to each poll book.(l) 

BALLOT BOXES AND POLL BOOKS. 

Sec. 40. The county board shall provide a sufficient num- Ballot boxes, 
ber of ballot boxes, with secure locks and keys, at the expense w ^e. sha11 pr °" 
of the county, for the several precincts and districts. There 
shall be an opening in the lid of each box not larger than is 
sufficient to admit a single closed ballot to be inserted therein 
at one time, through whioh each ballot voted shall be put into 
the box. 

Sec. 41. The ballot boxes shall be delivered to and kept by Kept by iudges 
the judges of election, and by them kept and delivered over to ofelection - 
their successors. 

Sec. 42. The county clerk shall provide, at the expense" of poll books, who 
the county, proper blank poll books and other necessary elec- shaU P rovlde - 
tion blanks for each precinct and district in his county, and 
cause a suitable number thereof to be delivered to the judges 
of election, at least ten days before any election is to be held. 

CONSTABLES APPOINTED TO ATTEND ELECTIONS — ORDER. 

Sec. 43. The county board may appoint one or more con- Constables to 
stables to attend each place of holding elections and preserve tions, who may 

. appoint. 

(1) The neglect of the judges or clerks of an election to take the prescribed oath 
does not vitiate an election ; neither does the irregular administration of the oath 
have that effect. An oath irregularly administered — for example, upon a book 
other than the Bible — the parties administering and taking it supposing it to be 
a Bible, is a valid oath. People v. Cook, 4 Seld., R. 67. See Taylor v. Taylor et al., 
10 Minn. R., 107. 

Where the judges and clerks of an election act under color of office, having been 
duly appointed, that is sufficient to constitute them officers de facto, and in such 
case it is immaterial, so far as the validity of their election returns are concerned, 
whether they were sworn at the election or not. The law, in such case, presumes 
them to have been well appointed and qualified. The people ex rel., etc., v. Hilliard, 

If the officers of election fail to perform their dutv, the law provides a penalty, 
nut the election is not necessarily rendered void. Taylor v. Taylor et al., 10 Minn. 



24 ELECTIONS. [DIV. I. 

order during the election ; if no constable is appointed by the 
county board to attend any place of holding election, or if 
others shall be necessary to preserve order, the judges of elec- 
tion may appoint one or more constables for that purpose. 
judges of eiec- Sec. 44. The judges of election may appoint any suitable 
poinXpecSi person to act as a special constable during the election. Con- 
constabie. stables serving at such election shall be paid out of the county 
treasury, not exceeding tvro dollars per day for each day's 
service, 
constable may Sec. 45. Any constable attending such election may call to 
suppress disor- j^ a -^ a su f£ c i en t number of citizens to arrest any disorderly 
person or suppress any riot or disorder during the election. 
Whoever conducts himself in a riotous or disorderly manner 
at any election, and persists in such conduct after being 
warned to desist, may be arrested without warrant. 

XOTICE OF ELECTION. 

Notice of time Sec. 46. At least thirty days previous to any general elec- 
efeetionf 2 ^ ^ on ' anc ^ at ^ east twenty days previous to any special election, 
except in cases otherwise provided . for, the county clerk, in 
counties not under township organization, shall make out and 
deliver to the sheriff of his county, or in counties under town- 
ship organization to the several supervisors of his county, three 
notices thereof for each precinct or district in which the election 
in such county is to be held. The notice may be substantially 
as follows :(1) 

Form of notice. "Notice is hereby given, that on [give the date,] at [give the place 
of holding the election and the name of the precinct or district] in the 
county of [name of county,'] an election will be held for [give the title 
of the several offices to be filled,] which election will be opened at eight 
o'clock in the morning and continue open until seven o'clock in the 
afternoon of that day. 

" Dated at this day of , in the year of our Lord 

one thousand eight hundred and . A. B.,' County Clerk;' 

Notice to be Sec. 47. The said sheriff, or supervisor to whom the notices 

Fi?pice-SSi"e are delivered, shall post up, in three of the most public places 
of posting. in each precinct or district, the three notices therefor at least 
fifteen days before the time of holding a general election, and 
at least eight days before the time of holding a special elec- 
tion. 



(1) If an election be held, without necessity, at a different place from that desig- 
nated by law, the entire poll must be rejected- Chadwick v. Jfelvin. Leading Case* 
on Elections, (Brightley) 251. 



DIV. I.] CONDUCTING ELECTIONS. 25 

CONDUCTING ELECTIONS — RETURNS. 

Sec. 48. The polls shall be opened at the hour of eight Pons, when 
o'clock in the morning, and continue open until seven o'clock opened ' 
in the afternoon of the same day, at which time the polls shall 
be closed ; but if the judges shall not attend at the hour of 
eight o'clock in the morning, or if it shall be necessary for the 
electors present to appoint judges to conduct the election, as 
herein before prescribed, the polls may, in that case, be open 
at any hour before the time for closing the same shall arrive, 
as the case may require. (1) 

Sec. 49. Upon opening the polls, one of the clerks or judges proclamation 
of election shall make proclamation of the same, and at least t0 be made - 
thirty minutes before the closing of the polls proclamation 
shall be made in like manner that the polls will be closed 
in half an hour. (2) 

Sec. 50. Before any ballot shall be deposited in the ballot- Ballot box to be 
box, the ballot-box shall be publicly opened and exhibited, andiubited. 
the judges and clerks shall see that no ballot is in such box ; 
after which the box shall be locked and the key delivered to 
one of the judges, and shall not be again opened until the 
close of the polls. 

Sec. 51. Each clerk of the election shall keep a poll list, Poll list, 
which shall contain a column headed "number," and another 
headed "names of voters." The name of each elector voting 
shall be entered upon each of the poll books by the clerks, in 
regular succession, under the proper headings, and the number 

(1) It is held, that although the law may direct that the polls shall be closed at 
a certain hour specified, and this question is in issue, unless it be made to appear 
that votes were cast after that hour, which would change the result, the fact that the 
polls were kept open after that hour would not render the election void. Piatt v. 
The People, 29 111. R., 72. 

It is held in New York that the provision as to the time Of opening and closing the 
polls is directory; that, for instance, should the inspectors or judges, being misled 
by a defective time-piece, close the polls a few minutes before » particular hour 
directed by the statute or receive a few votes after that hour, this will not render 
the election void. People v. Cook, 4 Seld. It., 92. 

A court of chancery has no power to prevent the holding of an election of officers, 
upon the alleged ground of a want of authority to hold such an election, the remedy 
therefor being complete at law by writ of quo warranto. The People ex rel. v. City of 
Galc<burg, 48 111. R., 485. 

While a court of chancery will not interfere to determine which of two persons 
has been elected to office, or try the rights of parties to hold an office, yet, in case of 
an election upon the question of the removal of a county seat, which is claimed to 
have resulted in favor ot removal, if it is alleged that such was not the result, by 
reason of the election being illegally held, or the vote not being a fair one, a court 
of chancery will entertain jurisdiction at the instance of those impeaching the 
election, to determine where the county seat is, although that inquirv may inciden- 
tally involve the question, whether the vote had been fairly taken, and if fraud 
had intervened therein to purge the polls. Boren v. Smith et al., 47 111. R., 482. Same 
doctrine held in The People ex rel., v. Wiant, 48 111. R., 263. 

(2) The usual form of proclamation of opening and closing the polls is as follows : 
Hear ye: hear ye: hear ye: the polls of this election are now 

open ; or, the polls of this election will be closed in half an hour. 



26 ELECTIONS. [DIY. I. 

of such voter placed opposite his name in the column headed 
"number." (1) 
Manner of vot- Sec. 52. The manner of voting shall be by ballot. The 
bafio~t kind ° f ballot shall be printed or written, or partly printed and partly 
written upon plain paper, with the name of each candidate 
voted for, and the title of the offices. When the ballot is 
printed, the same shall be printed upon plain paper, in plain 
type, in straight lines, w T ith a blank space below each name, 
of a width not less than equal to the width of the line in which 
the name is printed. (2) 

Sec. 53. The names of all candidates for which the elector 

(1) Neither a heading nor the signature of the inspectors or clerks -were required 
to make the poll list admissible, to prove that a person voted. People v. Pease, 27 
N. Y. (13 Smith) R., 45. 

The ballots cast at an election are better evidence than the tally list made from 
them of the number of votes. People v. Holden, 28 Cal. R., 123. 

Inspectors or judges of elections are merely ministerial officers, and their action 
can be reviewed by the courts. People v. Pease, 27 N. Y. (13 Smith) R., 45. 

If votes are cast by duly qualified electors, ou * lawful occasion, and at a proper 
place, their effect cannot be defeated by reason of mere official delinquency of the 

iudges in not transmitting them to the county clerk. Bourland v. HUdreth, 26 Cal. 
I., 161. 

And the omission of the judges of election to send a poll book to the county clerk, 
as required by statute, will not cause the rejection of the return from that precinct. 
(Deady, J., dissenting.) Day v. Kent, Oregon R., 123. 

Where the provisions of the election law have been entirely disregarded by the 
officers, and their conduct has been such as to render their returns utterly unworthy 
of credit, the entire poll will be rejected. But even in such case, legal votes proved 
to have been actuall> polled, must be computed. LUtltfleld v. Green, 1 Legal News 
330 (111. R.) See 1 Brewster ( Penn.), 60. 

(2) See Const., Art. VII., Sec. 2. 

A single piece of paper, cast as a ballot, and containing the name of a candidate 
more than once, should be counted as one vote, and not rejected as illegally thrown. 
People v. Holden, 28 Cal. R., 123. 

Ballots containing a greater number of names for an office than the number to be 
elected cannot be canvassed but must be rejected. People v. Adams, 9 Wend. R.. 333. 

If a ballot contains the name of two persons for the same office, it is bad as to both ; 
but such a ballot cannot be rejected as to candidates for other offices regularly 
named on the same ballot. Carpenter v. Ely, 4 Wis. R., 420. 

In case of questions arising upon a ballot as to the person or officer voted for, the 
intention of the voter should control, and effect be given thereto. If a ballot desig- 
nate an officer as " police justice," it should be taken as intending "police magis- 
trate." The People ex rel., etc., v. Matteson, 17 111. R., 167. 

The name of the person for whom the elector intends to vote should be written in 
full upon his ballot. It is held in Michigan, under the like provisions as in the text, 
that a ballot for JL A. Dyer cannot be counted for James A. Dyer ; that such a ballot 
does not contain the name of the person intended to be voted for, but merely the 
initial letters ; and no evidence is admissible to show that such a ballot was intended 
for James A. Dyer. But when, however, the designation of an individual on a ballot 
is by an abbreviation sanctioned by common usage, and universally understood, the 
ballot may be counted for the person for whom it was intended. Thus, a vote for 
Jas. A. Dyer may be counted for James A. Dyer. A slight error in the spelling of a 
name on a ballot, it is presumed would not prevent a ballot from being counted for 
the person for whom it was evidently intended. People v. Tisdale, 1 Dougl. (Mich.) 
R.. 50 ; People v. Higgins, 3 Mich. R., 233. Carpenter v. Ely, 4 Wisconsin R., 420. 

Ballots cast for Michael Flnegan, being of the same sound, it was held should have 
been counted for Michael Finnegan, the person intended. Finnegan v. Mayworm, 5 
Mich. R., 146. 

Under the law authorizing the election of two court commissioners, an election 
was held, but it was conducted, in all respects, as if only one was to be chosen ; two 
persons were opposing candidates, and each elector voted for one of the two, but in 
no instance did a ballot contain more than one name for this office. It was held 
that only the one receiving the highest number of votes was chosen, and as to the 
other there was a failure to elect. People v. Commissioners of Kent Co., 11 Mich. 
R.,111. 

Ballots upon paper tinged with blue, which has ruled lines, not placed there as 
marks to distinguish the ballots are upon white paper within the meaning of the 
statute. People ex rel. Brewster and Jones v. Kilduff, 15 111., R., 500 



DIV. I.] CONDUCTING ELECTIONS. 27 

intends to vote shall be written or printed upon the same bal- Names of ail 
lot, and the office to which he desires each to be elected shall Spliced oii° 
be designated upon the ballot. the same ballot. 

Sec. 54. In voting for representatives to the General As- For representa- 
scmbly, if the voter intends to give more than one vote to any AsSnbiy— m'i 
candidate, he shall express his intention on the face of the bal- 2mJa?ioii pre 
lot, in words or figures, which may be done in either of the 
following forms : A. B., C. D., E. F., which shall be held- to 
mean one vote for each candidate named ; or A. B. 1 \ votes, 
C. D. \\ votes ; or A. B. 2 votes, C. D. 1 vote ; or A. B. 3 
votes. (1) 

Sec od. The ballot shall be folded by the voter and deliv- Number of per- 
ered to one of the judges of election, and if the judges be be n endoreed on 
satisfied that the person offering the vote is a legal voter, the ballot 
clerks of election shall enter the name of the voter and his 
number under the proper heading in the poll books, and the 
judges shall indorse on the back of the ticket offered, the 
number corresponding with the number of the voter on the 
poll books, and shall immediately put the ticket into the ballot 
box. 

Sec 56. After the opening of the polls no adjournment Noadjoum- 
shall be had, nor shall any recess be taken, until all the votes JJJgf of the 
cast _ at such election shall have been counted and the result 
publicly announced. 

Sec 57. Immediately upon closing the polls, the judges Mode of can- 
shall proceed to canvass the votes polled. They shall first yJJ|g ng the 
count the whole number of ballots in the box. If the ballots 
shall be found to exceed the number of names entered on each 
of the poll lists, they shall reject the ballots, if any be found 
upon which no number is marked ; if the number of ballots 
still exceeds the number of names entered on each of the 
poll -lists, they shall be replaced in the box and the box 
closed and well shaken and again opened, and one of the 
judges shall publicly draw out and destroy so many ballots 
unopened as shall be equal to such excess ; and the ballots or 
poll lists agreeing or being made to agree, the board shall 
proceed to count, and estimate and publish the votes ; and 
when the judges of election .shall open and read the tickets, 
each clerk shall carefully mark down upon the tally -list the 
votes each candidate receives, in a separate column prepared 
for that purpose, with the name of such candidate at the head 
of such column, and the office designated by the votes such 
candidate shall fill. 

(1) See Const., Art. IV., Sees. 7 and 8. 



28 ELECTIONS. [DIV. I. 

when vote not Sec. 58. If more persons are designated for any office than 

counted. there are candidates to be elected, or if more votes or parts of 

votes are designated on any ballot for representatives than the 

voter is entitled to cast, such part of the ticket shall not be 

counted for either of the candidates. 

Baiiots-how Sec. 59. All the ballots counted by the judges of election 

preserved. shall, after being read, be strung upon a strong thread or 

twine, in the order in which they have been read, and shall 

then be carefully enveloped and sealed up by the judges, who 

shall direct the same to the officer to whom, by law, they are 

required to return the poll books, and shall be delivered, 

together with the poll books, to such officer, who shall care- 

when de- fully preserve said ballots for six months, and at the expiration 

strovpd •/a 'A 

of that time shall destroy them by burning, without the package 
Proviso in case being previously opened : Provided, if any contest of election 
2i f „^« sted sna U t> e pending at such time in which such ballots mav be 

election. r o J 

required as evidence, the same shall not be destroyed till such 

contest is finally determined, 
contested eiec- Sec. 60. In all cases of contested election, the parties con- 
tlons ' testing the same shall have the right to have the said package 

of ballots opened, and said ballots referred to by witnesses for 

the purpose of such contest. But said ballots shall only be 

so examined and referred to in the presence of the officer 

having the custody thereof, 
cierks to make Sec. 61. When the votes shall have been examined and 
??suit°o f f t t 1 he counted, the clerks shall set down in their poll books the name 
canvass. f every person voted for, written at full length, the office for 

which such person received such votes, and the number he did 

receive, the number being expressed in words at full length ; 

such entry to be made, as nearly as circumstances will admit, 

in the following form, to wit : 

Form of entry. "J& ■» electi( ? n held at Z . in ^ e «»inty ° f ~ > and State 

" of Illinois, on the day , in the year of our Lord one 

thousand eight hundred and" , the following named persons 

received the number of votes annexed to their respective names, for 
the following described offices, to wit : [name of candidate] had 
[number of votes] for [title of office], and in the same manner for 
any other persons voted for. 

11 Certified bv us : 

A. B. 1 



C. D. Y Judges of Election. 
E. F.J 



; Attest: G 



i'H" } cierks °f Eiecti ° n " 



Sec. 62. Such certificate, together with one of the lists of 
voters, and one of the tally papers, having been carefully 



DIV. I.] QUALIFICATION OF VOTERS. 29 

enveloped and sealed up, shall be put into the hands of one of 
the judges or board of election, who shall, within four days 
thereafter, deliver the same to the county clerk or his deputy, 
at the office of said county clerk ; and when received, such 
clerk or deputy shall proceed to open, canvass and publish the 
return from each precinct or election district, as provided by 
law. 

Sec. 63. The judges and clerks of election shall be allowed per diem of 
the sum of three dollars each per day for their services inJjJS" 13 
attending each election, and the judge who carries the said 
returns to the county clerk shall also receive five cents per 
mile, each way. 

Sec. 64. The judges of election shall allow at least one, challengers, 
and not more than two legal voters of each party to the contest, 
to be chosen by the parties respectively, into the room where 
the election is held, to act as challengers of voters at such 
election ; and such challengers may remain with the board of 
election until the votes are all canvassed and the result 
declared. 

QUALIFICATION OF VOTERS. 

Sec. Go. Every person having resided in this State one Qualification of 
year, in the county ninety days, and in the election district deuce. 
thirty- days next preceding any election therein, who was an 
elector in this State on the first day of April in the year of 
our Lord one thousand eight hundred and forty -eight, or 
obtained a certificate of naturalization before any court of 
record in this State prior to the first day of January, in the 
year of our Lord one thousand eight hundred and seventy, or 
who shall be a male citizen of the Linked States above the age 
of twenty -one years, shall be entitled to vote at such elec- 
tion.^) 

(1) See Const,, Art. VTL, Sec. 1. Each State has the undoubted right to prescribe 
tbe qualifications of its own voters. In the absence of some provision to that effect, 
the act of naturalization would not of itself confer on the person naturalized the 
right to exercise the elective franchise. The qualification of a voter at a Congres- 
sional election depends on the law of the State in which the elective franchise is 
exercised, and is dependent on the municipal regulations of the State. Spragins v. 
Houghton, 2 Scam. R., 395. 

Former decisions to the effect above, must of course be taken subject to the provi- 
sions of the 15th amendment to the Constitution of the United States. 

Unless the legislature shall make citizenship an indispensable qualification to the 
enjoyment of the elective franchise, and the Constitution clearly admits of the 
exercise of that power by that body, the supreme court cannot add such a prerequi- 
site by construction. Spragins v. Houghton, 2 Scam. R 409. 

Under the act of Congress of 1802, conferring jurisdiction upon certain courts for 
the purpose of naturalization, only courts of record for general and not for special 
purposes, were intended to be embraced within its provisions. " The Marine Court of 
the city of New York " is not a court of record within the meaning of the act of Con- 
gress conferring jurisdiction upon courts of record to admitaliens to citizenship; and 
hence a person so admitted by an order of that court does not become a qualified 



30 



ELECTTOXS. 



[DIV. I. 



permanent Sec. 66. A permanent abode is necessary to constitute a 

Snstltutesresi- residence within the meaning of the preceding section. (1) 

ience. 

elector, and cannot maintain an action, under the act of 1849, for rejection of his 
vote. Mills et at. v. McCabe, 44 111. R., 194. 

The question whether the person offering to vote is a naturalized foreigner or an 
inhabitant, and entitled to vote, the judges of election have no right to investigate, 
under the existing laws. If such person takes the oath prescribed in the law, the 
duty is imperative upon the judges to receive his vote unless the oath is proved to 
he false. Spragins v. Houghton, 2 Scam. R., 416. If, however, the judge should of his 
own knowledge know the oath to be false, he would not be liable to the penalty 
under section 20 should he refuse to receive the vote for that reason. Mills et al. v. 
McCabe, 44 111. R., 194, 

(1) The term inhabitantis derived from the Latin habito, and signifies live in, to dwell 
in ; and is applied exclusively to one who lives in a place, and has there a fixed and 
legal settlement. The residence, however, is to be bona fide, and not casual or tem- 
poral. Spragins v. Hougldon, 2 Scam. R., 396. 

The residence is a question of intention from all the facts and circumstances in each 
case. Kitchell v. Burgwin et ux., 21 111. R., 44; Ives v. Mills, 87 111. R., 75 : Waltus v. 
The People, 21 111. R., 174, 178. 

Residence and habUancy are generally synonymous. A residence is different from 
a domicil, although it is a matter of great importance to determine the place of 
domicil. Residence indicates permanency of occupation, as distinct from lodging, or 
hoarding, or temporary occupation, but does not include so much as domicil, which 
requires an intention continued with residence. Bouv. Law Diet, " Residence." 

A domicil may be defined " a residence at a particular place, accompanied with 
positive or presumptive proof of continuing it an unlimited time," and is a conclu- 
sion of law on an extended view of facts and circumstances. Grier v. 0' Daniel, 1 
Binn. R., 352. 

A resident is a person coming into a place with an intention to establish his domi- 
cil or permanent residence, and actually executing that intention by taking a home 
or lodging, opening a store or the like. United States v. The Penelope, 2 Peters Adm. 
R., Dec. 450. 

Residence is a question of intention. By a removal out of the State, without an 
intention permanently to reside elsewhere, a person will not lose his residence, nor 
will he acquire one by a mere intention to remove permanently, not followed by 
actual removal. Casey's Case, 1 Ash. R., 126. 

To effect a change of domicil there ,must be intention and act united. 2 Kent 
Com., 43 ; Crawjord v. Wilson, 4 Barb. R., 504. 

To effect a change of residence, it is not enough that one intends to change it, and 
helieves he has done in law what amounts to a change. The intent and fact must 
concur, and his opinion cannot produce the result. Chaine v. Wilson, 8 Abbot's 
Pr., 78 ; Smith v. People ex rel., 44 111. R., 22. 

If a person goes out of a Stale, county, or town, for a particular purpose, and does 
not take up a permanent residence elsewhere, he cannot be considered as having 
removed from the State, county or town, so as to affect his domicil and inhabitancy. 
SearsY. City of Boston, 1 Mete. R., 250 ; Sachet's Case, 1 Mass. R., 58 ; Abingtonx. Boston, 
A Mass. R., 312. 

A man's domicil is not changed by an absence for a temporarv purpose, with or 
without his family. Cadivalader v. Howell, 3 Harr. R., 138 ; State v. Judge, 13 Ala. R.. 805. 

A person's home or domicil is his habitation fixed in any place, without any pre- 
sent intention of removing therefrom. Putnam v. Johnson. 10 Mass. R., 488. 

A domicil once fixed will continue, notwithstanding the absence of the party, 
Until a new domicil is acquired. Jennison v. Hapgood, 10 Pick. R., 77. 

A domicil once acquired is presumed to continue until a new one is obtained, in 
fact and by intention. Glover v. Glover, 18 Ala. k., 365. 

Unless one's change of demicil is complete and final.it does not constitute an 
abandonment of one's country. Hardy v. DeLeon, 5 Texas R., 211 ; Brown v. Smith, 
11 Eng. Law and Eq., 6 ; Leach v. Pillsbury, 15 N. H. R., 137. 

E'ery person has a domicil of origin, which he retains until he acquires another, 
and the one thus acquired is in like manner retained. Thorndike v. City of Boston, 1 
Mete. R., 242 ; Kilburn v. Bennett, 3 Mete. R., 199. 

A person having a legal settlement in one place, that settlement continues until 
another is acquired in the State. A settlement in another State or county will not 
change that acquired in this State, if he returns to it. Payne v. Town of Dunham, 29 
111. R., 129. 

To constitute a change of residence from one election district to another, there 
must be an actual removal. McDaniel's Case, 3 Penn. Law Journal, 310. 

Residence within the meaning of the Constitution, as a legal qualification of an 
elector, is synonymous with domicil, and means the place of a person's permanent 
abode. 

A student at college, who has a domicil of origin, and resides at the institution for 
the sole purpose of education, does not thereby acquire the right to vote in the 
district in which the college is located. 

The election officers are not concluded by the oath of the person offering to vote, 
as to the question of domicil ; they have a right to determine the point from all the 
facts and circumstances of the case. Allentown Election, 28 Legal Intelligencer, 229. 



DIY. I.] QUALIFICATION OF VOTERS. 31 

Sec. 67. "Whenever, at any general or special election, in voter to make 
any precinct, district, city, village, town or ward, any person chknTnge'cL 6 " 
offering to vote is not personally known to the judges of elec- 
tion to have the qualifications mentioned in the two preceding 
sections, if his vote is challenged by a legal voter at such 
election, he shall make and subscribe an affidavit in the follow- 
ing form, which shall be retained by the judges of election, and 
returned by them with the poll books : 

"State of Illinois, \ Form of oath. 

County of Look, J 

" I, , do solemnly swear [or affirm] that I am a citizen of the 

United States [or, that I was an elector on the first day of April, 
A. D. 1848, or, that I obtained a certificate of naturalization before 
a court of record in this State prior to the first day of January, A.D. 
1S70, as the case may be] ; that I have resided in this State one year, 
in this county ninety days, and in this election district thirty days 
next preceding this election ; that I now reside at [here give the 
particular house or place of residence, and if in a town or city the 
street and number], in this election district; that I am twenty -one 
years of age, and have not voted at this election : So help me God 
[or, this I do solemnly and sincerely affirm, as the case may be.] 

" Subscribed and sworn to before me this day of , A. D. 

18—." 

Sec. 68. In addition to such an affidavit, the person so i u addition to 
challenged shall produce a witness, personally know T n to the h 1 e c ^anpro- t 
judges of election, and resident in the precinct or district, duce a witness, 
or who shall be proved by some legal voter of such precinct or 
district, known to the judges to be such, who shall take the 
oath following, viz. : 

" I do solemnly swear [or affirm] that I am a resident of this elec- f . 

tion precinct [or district], and entitled to vote at this election, and neS^oath/ " 
that I have been a resident herein for one year last past, and am well 
acquainted with the person whose vote is now offered ; that he is an 
actual and bona fide resident of this election precinct [or district], and 
has resided herein thirty days, and, as I verily believe, in this 
county ninety days and in this State one year next preceding this 
election." 

Sec. 69. The oath, in each case, may be administered by Who may a( j. 
either of the judges of election, or by any officer, resident inj™£ iste . rsuch 
the precinct or district, authorized by law to administer oaths. 

Sec. 70. No person who has been legally convicted of any convicts, 
crime, the punishment of which is confinement in the peniten- 
tiary, shall be permitted to vote at any election, unless he shall 
be restored to the right to vote by pardon. 



QO 



ELECTIONS. 



[div. I. 



CAXVASSIXG VOTES — CERTIFICATE OF ELECTION. 

Abstract of Sec. 71. Within seven days after the close of the election, 

mate i!y e tne county clerks of the respective counties, with the assistance 
county clerk. f ^ justices of the peace of the county, shall open the 
returns and make abstracts of the votes in the following man- 
ner, as the case may require: Of votes for governor and 
lieutenant-governor, on one sheet; of votes for other State 
officers, on another sheet ; of votes for presidential electors, on 
another sheet; of votes for representatives to congress, on 
another sheet ; of votes for judges of the supreme court, on 
another sheet; of votes for clerks of the supreme court, on 
another sheet ; of votes for judges of the circuit court, on 
another sheet ; of votes for senators and representatives to the 
general assembly, on another sheet ; of votes for members of 
the state board of equalization, on another sheet ; of votes for 
county officers, on another sheet. The foregoing abstracts shall 
be preserved by the county clerk in his office. (1) 



(1) A statement of the number of votes given at an election for the respective 
candidates, required to be made out and filed by the board of county canvassers, is 
prima facie evidence only of the facts stated in it. The county canvass may be cor- 
rected, in a proceeding for that purpose, by the township canvassers, and the latter 
by the ballots themselves. The determination of the board of county canvassers of 
the persons elected is prima Jacie evidence only of their election. A party may go 
behind the canvass to the ballots to show the number of votes cast for him. The 
duties of the board of canvassers being wholly ministerial. So held in Michigan. 
People v. Yancleve, 1 Mich. R., 3G2. See also Attorney General ex rel. Carpenter v. Ely, 
4 Wis. R.. 420. 

When the vote of an election district is rejected by the county canvassers, because 
no poll -list with the oath of the judges of election accompanied the statement of 
votes made up and returned to the proper officers, the statement being regular in all 
other respects, and delivered by and to the proper officers within the time prescribed 
by law, trie testimony of the town clerk, in a proceeding testing the regularity of the 
election, is competent to show by the records kept in his office that the election was 
regularlv notified and conducted, and that the votes were ascertained and canvassed 
according to law, and also to show the number of votes cast for the different candi- 
dates. The chairman of the town board, whose vote is rejected for the above reasons, 
as a proper witness to show that he acted as one of the judges of election, that the 
judges were duly sworn before the polls were opened, and that the election was con- 
ducted according to the statute. Attorney General ex rel. Carpenter v. Ely. 1 Wis. R.. 420. 

Although the person who received the greatest number of votes for a particular 
office is ineligible to that office, such votes are not thereby a nullity, but should be 
counted by the canvassers ; and the person who received a less number of votes in 
such case, although eligible, can not be regarded as elected. Dunning ex rel., etc., v. 
Giles, 1 Chand. (Wis.) R.. 112. Off ex rel., etc., v. Smith, 14 Wis. R., 497. 

The countv canvassers have no power not expressly given them by law. They 
must perform their duties precisely as prescribed by the statute, and can not go 
bevond it, And this relates to State and town canvassers. Breahford ex rel., etc., v. 
Brudon. 4 Wis. R.,567. 

Notwithstanding the judges and clerks of elections may not be sworn, and no list 
of electors is kept, as required by law, and other irregularities have occurred, it is 
the duty of the county board to canvass the returns, and their certificate is prima 
Jacie evidence of the result of the election. Taylor v. Taylor el ah, 10 Minn. R.. 107. 

the determination, by the canvassers, of the right of the pprson elected, is not 
conclusive, but merely prima facie evidence of that person's right to the office, and 
mav be overcome by "the party who denies such right. Territory v. Pylc. 1 Oregon 
R.. 149. 

Where no contest is entered, it is held that the county canvassers can only declare 
the result of the election, as shown by the certificate and returns of the judges of the 
election. Thev do not pass upon the" qualification of voters, nor decide what ballots 
shall be counted. The People ex rel.. etc., v. Kilduff, 15 111. R., 492. 

Indeed it is held, in a later case, that the office of canvasser is merely ministerial. * 
and, as such, will be controlled by the courts: that these officers are clothed with no 
discretionary powers. Thev are "to open the returns, make abstracts of the votes as 



DIV. I.] CANVASSING VOTES. 33 

Sec. 72. The county clerk shall make out a certificate of county clerk 
election to each of the persons having the highest number of and^efivlr 
votes, for the several county offices, and deliver such certificate certificates ot 

... . J . . ' . . election to per- 

to the person entitled to it, on his application. sons entitled to 

they appear, and the clerk is to deliver a certificate of election to each person having 
the highest number of votes. They are not allowed to reject any returns, or decide 
upon their validity, if, on their face, they are made in compliance with the law. 
The People ex rel., etc., v. Milliard, 29 111. It., 423. People v. Vancleve, 1 Mich. R., 362. 

A different rule obtains in Wisconsin uuder a statute admitting of a different con- 
struction. Attorney General ex rel. Carpenter v. Ely, 4 Wis. K., 420. 

The justices of the peace, as members of the canvassing board, possess equal power 
with the county clerk. After the board adjourn their power is at an end, and they 
can not be again called together; and no amendment of their proceedings can be 
made. Opm. Att'y Gen'l Cole (Minn.), vol. 1, p. 145. 

When the board of canvassers have legally canvassed the returns of election, and 
declared the result, their power over the subject is exhausted, and they can not after- 
wards reverse their decision by making a different determination. Beadley v. Albany, 
33 N. Y. R., G03. 

Where an informality occurs in making election returns, it may no doubt be cor- 
rected by the canvassers, and should net be allowed to operate to disfranchise the 
voters. Tlie People ex rel., etc., v. Billiard, 29 111. It.. 414. 

The duties of the county clerk in receiving and opening election returns, in can- 
vassing aud estimating the votes, and in giving certificates of election, are purely 
ministerial, and no judicial or discretionary powers are conferred upon him or the 
board of canvassers, except, perhaps, that of determining whether the returns are 
genuine, or polled, at proper places, and ascertaining from the returns themselves for 
whom the votes were intended. O'Farrell & Bryant v. Colby, 2 Minn. R., 180 

The duty of the clerk in issuing a certificate of election to the person having the 
highest number of votes is purely ministerial, and a mandamus will be granted to 
compel him to issue such certificate. Slate v. Lawrence. 3 Kan. R., 95. 

The certificate of election is prima facie title to the office, and can only be set aside 
by a contest in the form prescribed by lav/. Pretlyman v. Supervisors et al., 19 111. R„ 
406. Kerr v. Trego, 47 Penu. St. R., 292. 

Where the certificate required of the county clerk in a case for the removal of a 
county seat, omitted to state the uumber of votes cast at the election, so it might be 
seen whether the proposition had been carried or lost, the returns of the judges and 
clerks of election may be resorted to for the purpose of ascertaining that fact. The 
object of "such an election will not be defeated for the want of such a statement in 
the certificate. The People ex rel. v. Wiant, 48 111. R.. 263. 

When no certificate or other formal mode of making known to a person his elec 
tion to a public office is required by law, the result of the election, as ascertained 
and announced at the close, is conclusive upon the election of officers, and can not 
afterwards be reconsidered or varied. State v. Warren, 1 Houston (Del.) R„ 39. 

In a proceeding by quo warranto to try the right to an office elective by the people, 
it is competent to go behind the certificate to ascertain the decisive fact of who 
received the most legal votes. (Denio, C. J., and Wright and Marvin, justices, dis- 
senting.) People v. Pease, 27 N. Y. (13 Smith), R., 45. 

The supreme court has no power to decide upon the right of a party to hold a seat 
in the legislature, but it may compel the proper officers to give the proper creden- 
tials to enable the party to assert his claim before the proper authority. The award 
of a certificate to either candidate under the mandate of the court will not deter- 
mine his election. O'Farrell & Bryant v. Colby, 2 Minn. R., 180. The People ex rel. v. 
Hilliard, 29 111. R., 413. 

In an information in the nature of a quo warranto to test the fact of election between 
the parties claiming the same, the court is bound to rectify mistakes and omissions 
of the canvassing boards. Attorney General ex rel. Carpenter v. Ely, 4 Wis. R., 420. 

The legality of an election does not depend upon the fact of the declaration of the 
board of election, or that of the canvassers, if withheld or not made, through illegal 
causes, the office will vest: the authority, rights and powe/s of officers are derived 
from the election, and not from the returns. The People ex rel, etc., v. Killduff, 15 111. 
R.. 492. 

_ When the signature of the officers who administered the oaths attached to the 
j-irats of a poll book did not appear, and for that reason the poll book was rejected 
by the canvassers, and a certificate given to the opposite party, the rejection of the 
poll book causing a change in the result : Held, that the writ of mandamus was the 
only remedy of the defeated party to compel the delivery to him of the certificate 
of el ection, as the prima facie evidence of his election. The People ex rel., etc., v. Bil- 
liard, 29 111. R., 413. 

A person elected to a county office, although he receives no official notice of his 
election, must qualify within the time prescribed by law. The neglect or refusal of 
the county clerk to make out his certificate of election, in compliance with the 
statute, will not impair his title to the office. Spooner ex rel., etc., v. Elderkin, 5 Wis. 



34 



ELECTIONS. [DIV. I. 



Tie vote. Sec. 73. When two or more persons receive an equal and 

the highest number of votes for an office to be filled by the 
county alone, the county clerk shall issue a notice to such per- 
sons ot such tie vote, and require them to appear at his office, 
on a day named in the notice, within ten days from the day of 
election, and determine by let which of them is to be declared 
elected. 
Deq&ed by lot. Sec. 74. On the day appointed, the clerk and other canvas- 
sers, or, in case of their absence, the State's attorney or sheriff 
shall attend, and the parties interested shall appear and deter- 
mine by lot which of them is to be declared elected ; and the 
clerk shall issue his certificate of election to the person thus 
declared elected, 
compensation Sec. 75. It shall oe the auty of the county clerk, on the 
clerks— how receipt of the election returns of any general or special elec- 
paid ' tion, to make out his certificate, stating the compensation to 

which the judges and clerks of each election may be entitled 
for their services, and lay the same before the county board at 
its next session ; and said board shall order the compensation 
aforesaid to be paid out of the county treasury. 
Abstract of re- Sec. 76. Immediately after the completion of the abstracts 
tcSc'i^sSte! of votes, the county clerk shall envelope and seal up a copy 
of the abstracts of votes for governor, lieutenant-governor, 
secretary of state, auditor of public accounts, treasurer, attor- 
ney general, and superintendent of public instruction, and 
indorse upon it in substance, "Abstracts of votes for State 

officers from county," and address it " The speaker of 

the house of representatives." The county clerk shall, at the 
same time, envelope and seal up a copy of each of the abstracts 
of votes for other officers, and indorse the same so as to show 
the contents of the package, and direct the same to the secre- 
tary of state. The several packages shall then be placed in 
one envelope and addressed to the secretary of state. 
How transmit- Sec. 77. Such abstracts shall be transmitted to the secretary 
ted - of state by mail, or, in case it shall be necessary, by special 

messenger, 
state canvass- Sec. 78. The secretary of state, auditor, treasurer and 
how made. attorney general, or any two of them, in the presence of gov- 

Officers elected on the proper day, refusing to qualify, become officers de facto, and 
their acts are valid as to the third persons, and can only be inquired into directly, 
not collaterally. Coles County v. Allison, 23 111. R., 437. See People v. Collins, 7 Johns. 
R., 549 ; People v. Runkle, 9 Johns. R., 147. 

Mandamus is the proper remedy against any officer to obtais possession of seals, 
books, papers, muniments, or other property belonging to corporations. Tlie People 
ex rel. Brewster and Jones v. Killduff, 15 111. R., 502. 

Canvassers are mere ministerial officers ; it is their duty simply to cast up th e votes 
and award the certificate to the person having the highest number; they have no 
judicial power. State v. Steers, 44 Mo., 223. 



P!Y. I.] OFFENSES AND PENALTIES. 35 

ernor, shall proceed, within twenty days after the election, and Governor sh^.i 
sooner if all the returns are received, to canvass the votes given §f V eiS>n? r te 
for representatives to Congress, judges of the supreme court, commission, 

. . r - , • i /» i • and cause pro- 

cierks ot -the supreme court, judges ot the circuit court, sen- ciamation to be 
ators, representatives to the General Assembly, and members made " 
of the state board of equalization, respectively ; and the per- 
sons having the highest number of votes for the respective 
offices shall be declared duly elected; but if it appears that 
more than the number of persons to be elected have the high- 
est and an equal number of votes for the same office, the 
secretary of state, in the presence of the other officers and the 
governor, shall decide by lot which of such persons shall be 
elected ; and to each person duly elected, the governor shall 
give a certificate of election or commission, as the case may 
require, and shall cause proclamation to be made of the result 
of the canvass. 

OFFENSES AND PENALTIES. 

Sec. 79. No spiritous, malt, vinous or intoxicating liquor No liquor to be 
shall be sold or given away at retail, nor shall any saloon or Iway^hirf 
bar-room, or place where such liquor is so sold or given away, p^g mile of 
be open upon any general or special election day within one 
mile' of the place of holding an election. Whoever violates Penalty 
the provisions of this section shall be fined in a sum not less 
than twenty-five nor more than one hundred dollars. It shall 
be the duty of the sheriff, coroner, constables and other officers 
of the county, and magistrates, to see that the provisions of 
this section are enforced. 

Sec. 80. If any person whose vote is challenged, or any F a i se swe aring. 
witness sworn under the provisions of this act, shall, know- 
ingly, willfully, and corruptly, swear falsely, he shall be 
deemed guilty of perjury, and on conviction thereof, shall be 
punished accordingly. 

Sec. 81. Whoever unlawfully votes more than once at any Repeating— 
election, or offers to vote after having once voted at such elec- penalty! 0Uns- 
tion ; or knowing that he is not a qualified voter at an election, 
willfully votes at such election, shall, on conviction thereof, be 
fined in a sum not exceeding one thousand dollars, or impris- 
oned in the county jail not exceeding one year, or both, in the 
discretion of the court. 

Sec. 82. Whoever willfully aids or abets any one not legally other irreguia- 
qualified to vote at an election, in voting or attempting to vote nties ' 
at such election ; or 

Second — Furnishes an elector with a ticket or ballot inform- tors as to°the 
ing him that it contains a name different from that which Set on a 



36 ELECTIONS. [DIV. T. 

appears thereon, with intent to induce him to vote contrary to 
his inclination ; or 
Fraudulently Third — Fraudulently or deceitfully changes a ballot of an 
cf ei?ctof ballot elector, with intent to deprive such elector of votingfor such 

person as he intended ; jor 

Obtaining vote Fourth — Endeavors to procure the vote of any elector, or 

threats ery or tne i R ^ uence of an y person over an elector at any election, for 

himself or for or against any person, by means of a promise 

of a favor, or by means of violence or threats of violence, or 

threats of withdrawing custom or dealing in business or trade, 

or enforcing the payment of a debt, or bringing a suit or 

criminal prosecution, or any other threat of injury to be inflicted 

by him or his means ; or 

Attempting to Fifth — By offering a reward or bribe, or by treating to or 

uv fl n\eans of le S^ 11 ^ spiritous, malt, or other liquor, either directly or indi- 

dnnk. rectly, influences or attempts to influence any voter in giving 

or withholding his vote at an election ; or 
Bribery, etc Sixth — By bribery or by corrupt or unlawful means, pre- 

vents or attempts to prevent any voter from attending or voting 
at an election ; or 
Penalty. Seventh — Gives or oilers to give any valuable thing or bribe 

to any judge or clerk of election, as a consideration for some 
act to be done or omitted to be done, contrary to his official 
duty in relation to such election, shall, on conviction thereof, 
be fined in a sum not exceeding one thousand dollars, or im- 
prisoned in the county jail not exceeding one year, or both, in 
the discretion of the court. 
Penalty for ask- Sec. 83. Whoever receives, requests or demands any bribe 
mg a bribe. Qr rewar( j forbidden by this act to be given, shall be liable to 
the same penalties as are prescribed by this act for giving such 
bribe or reward. 
Disorder. Sec. 84. "Whoever is disorderly at any election shall forfeit 

a sum not exceeding twenty -five dollars, 
netting on elec- Sec. 85. Whoever bets or wagers any money, property or 
tions. other valuable thing, upon the result of an election which may 

be held under the Constitution or laws of this State, or bets or 
wagers money, property or other valuable thing, upon the 
number of votes which may be given to any person at an elec- 
tion ; or upon who will receive the greatest number of votes at 
an election; or agrees to pay any ether person any money, 
property or other valuable thing, in the event that an election 
shall result in one way, or in the event that any person shall 
or shall not be elected, or shall receive a greater number of 
votes than others, upon conviction thereof he shall be fined in 
a sum not exceeding one thousand dollars, or imprisoned in 



DIV. I.] OFFENSES AND PENALTIES. 87 

the county jail not exceeding one year, or both, in the discre- 
tion of the court.(l) 

Sec. 86. If any judge of any election shall permit a person Misconduct of 
to vote whose vote is challenged, without the proof required {ion? 8 ** ° C " 
in this act; or,(2) 

Second — Shall knowingly and willfully permit a person to 
testify as a witness contrary to the provisions of this act ; or, 

Third — Shall knowingly permit a person to vote who is 
not qualified according to law ; or, 

Fourth — Shall knowingly receive and count more than one 

(1) The voting of electors of this State, for a president of the United States, is an 
election held under the laws of this State, and abet or wager as to the result of such 
vote, is a wager on the result of an election under the statute. McClurken v. Detrich 
etal.,2S 111. R., 349. See Gordo?iv. Casey, 23 111. R.,71; Styhensv. Sharpc,2d 111. It., 401. 

The election law, concerning betting on elections, is intended to apply to the elec- 
tion of presidential electors, as well as to that of State officers ; and bets made o:i such 
elections are void. Gordon v. Casey, 23 111. It., 70. 

A wager on the result of the electoral vote for president of the United States, in 
this State, is void, as against public policy, by the common law. Allen v. Hcarnc, 1 
Tenn. R., 57 ; Bunn v. liiker, 4 Johns. R., 420 : Bush v. Kceler, 5 Wend. L., 250 : Morgan 
v. FeUit, 3 Scam. R., 531; 16 Serg. and Rawle It., 147; Gordon v. Casai, 23 111. R., 71; 
Stephens v. Sharpe, 23 111. R., 404; McClurken v. Detrich et al., 33 111 R.»350. 

A bet or wager on the result of an election in this State, whether made before or 
after the election, would be illegal, as against good policy. Morgan v. Petlit, 3 Scam. 
It.. 531. 

A wager as to the result of a presidential election, in another State, made after the 
vote has been cast, is not against public policy. Smith v. Smith, 21 111 R., 244. 

The law prohibiting betting on elections applies only to elections held in this State, 
and does not extend to those made concerning elections to be held in other States: 
therefore, a bet or wager between two citizens of this State, upon the majority which 
General Harrison would obtain at the presidential election in the State of Kentucky, is 
not illegal ; and an action can be maintianed by the winner to recover the amount of 
the wager. Morgan v. Peltit, 3 Scam. R., 531. 

Where B and L purchased a piece of cloth at a store on credit, and at the time of 
the purchase a memorandum was made as follows : " If Mr. Douglass is elected to 
Congress, Brown is to pay for the cloth ; if Mr. Stewart is elected, James Lurton has 
it to pay ;" Held, that the contract was in severalty. Held, also, that the contract for 
the sale of the cloth was valid ; and was not tainted by the bet of B and L. Lurton 
v. Gilliam etal., 1 Scam. R., 579. 

At common law, all wagers are recoverable, but such as are prohibited by statute ; 
such as are against sound policy ; and such as tend to a breach of the peace, to 
immorality, or indecency, or injuriously affect the rights of third persons. Morgan 
v. Feuit. 3 Scam. R., 530. 

A stakeholder, unless some other mode has been provided; is the proper person to 
decide who has won a wager. Smith v. Smith, 21 111. R., 244. The court concurs with 
the case of Elhron v. Kingsman, 4Eng. Com. Law R., 620. 

A note for money, payable if " Abraham Lincoln receives the electoral vote of the 
State of Illinois," is a bet on election, and void on its face. Gordon v. Casey, 23 111. 
R., 71 ; Guymanv. Burlingame, 36 111. R., 201. 

It seems a court of equity will not decree the specific performance of a contract, 
the consideration of which is a wager upon an election held uuder the law of this 
State. McClurken v. Detrich et al., 33 111. It., 349. 

(2) It is only when the judge of election allows the exercise of the elective fran- 
chise by one whose right he suspects, or whose vote is challenged, without tendering 
the required oath, that the judge violates the law. Spragins v. Houghton, 2 Scam. 

An election officer is not criminally liable for a mere mistake of judgment, but 
only for a willful disregard of duty ; when indicted for rejecting a vote, the presump- 
tions are in his favor. Commonwealth v. Lee, 1 Brewster (Penn.), 273. 

An action on the case will not lie against the inspectors of election for refusing 
the vote of a qualified elector, unless on proof of malice, express or implied. Jenkins 
v. Waldron, 11 Johnson, N. Y., 114. 

Election officers are generally punishable by indictment, for knowingly receiving 
the vote of one who is not a duly qualified elector. State v. Boll, 7 West, L. J., 138. 
Slate x. McDonald, 4 Harrington, 555. 

Fraud, when imputed to the acts of inspectors of election, implies an illegal and 
wrongful act, purposely committed. People v. Cook, 8 Kew York, 67. 



Penalty. 



88 ELECTIONS. [l)IV. I. 

vote from the same person at the same election for the same 
office, except as allowed by law ; or, 

Fifth — Shall refuse to receive the vote of a qualified elector 
at such election, who will make the affidavit and proof required 
by this act ; or, 

Sixth — Shall be guilty of any fraud, corruption, partiality 
or manifest misbehavior ; or, 

Seventh — Shall open or unfold any ballot when the same 
is presented to be deposited in the ballot-box ; or, 
How punished Eighth — Shall willfully neglect to perform any of the 
dutiesf lect ° f duties required of him by this act, shall, on conviction thereof, 
be fined in a sum not exceeding one thousand dollars, or 
imprisoned in the county jail not exceeding one year, or both, 
in the discretion of the court. 
Comparison of Sec. 87. If any judge or clerk of election shall willfully or 
'^d^and clerk C01TU l :> ^3 r ascertain, by comparison of the poll book with the 
forbidden. ballot, or shall allow any other person to ascertain by such 
comparison or otherwise, or shall willfully publish or reveal 
how any elector voted at an election, he shall, on conviction 
thereof, be fined in any sum not exceeding one thousand dol- 
lars, or imprisoned in the county jail not exceeding one year, 
or both, in the discretion of the court. 
Publishing the Sec. 88. If any person shall willfully or corruptly ascertain 
manner in or publish, or reveal how any elector voted at an election, he 

v-nich any per- . \, . . , P £ o i • v 

son voted— how shall, on conviction tncrcoi, be tinea m any sum not exceeding 
p ec " one thousand dollars, or imprisoned in the county jail not 

exceeding one year, or both, in the discretion of the court. 
Neglect of clerk Sec. 89. If any clerk of an election shall willfully neglect 
to perform du- to perform any duty required of him as clerk of election, or 
shall be guilty of fraud, corruption or misbehavior as such 
Penalty. clerk, he shall, on conviction, be fined in a sum not exceeding 

five hundred dollars, or imprisoned in the county jail not 
exceeding six months, or both, in the discretion of the court. 
Failure to de- Sec. ^. If any judge, clerk or messenger, after having 
fiver poll book, been deputed by the judges of election to carry the poll books, 
tally list and votes of such election to the place where, by law, 
they are required to be canvassed, willfully or negligently 
fails to deliver such poll books, tally lists or ballots within the 
time prescribed by law, with the seal unbroken, he shall, upon 
conviction, be fined in a sum not exceeding five hundred dol- 
lars, or imprisoned in the county jail not exceeding six months, 
or both, in the discretion of the court. 
county clerk— Sec. ^1- If * ne county clerk willfully neglects or refuses to 
neglect of duty. p er form any duty required of him by this act, he shall, upon 
conviction, be fined in a sum not exceeding five hundred dol- 



DIV. I.] CONTESTING ELECTIONS. 39 

lars, and shall be liable to the person injured by reason of penalty, 
such neglect or refusal, in an amount not exceeding five hun- 
dred dollars, to be recovered in an action on the case. 

Sec. 92. If any county clerk or justice of the peace shall Fraud in can- 
be guilty of any fraud, corruption or misbehavior in canvassing vassing 
the votes or making any abstract of votes, or issuing any cer- 
tificate of election, he shall, on conviction, be fined in any Penalty 
sum not exceeding five hundred dollars, or imprisoned in the 
county jail not exceeding one year, or both, in the discretion 
of the court. 

Sec. 93. Whoever shall willfully and wrongfully take or carrying away 
carry away from the place where it has been deposited for safe poin?ook. " c 
keeping, or deface, mutilate or change any poll book, ballot or 
tally list, or any name or figure therein, shall, on conviction, 
be fined in a sum not exceeding one thousand dollars, or Penalty, 
imprisoned in the county jail not exceeding one year, or both, 
in the discretion of the court. 

contesting elections. 

See. 94. The legislature in joint meeting shall hear and contesting the 
determine cases of contested elections of governor and lieuten-omcer°s n ° lstate 
ant -governor, secretary of state, auditor of public accounts, 
treasurer, superintendent of public instruction, and attorney 
general. The meeting of the two houses, to decide upon such 
elections, shall be held in the hall of the house of representa- 
tives, and the speaker of the house shall preside. 

Sec. 95. The senate and house of representatives shall of senators and 
severally hear and determine contests of the election of their £? e r ^ SfcUta " 
respective members. 

Sec. 96. The supreme court shall hear and determine con- of judges of su- 
tests of the election of judges of the supreme court, clerks of cSSftandsu- 
the supreme court, judges of the circuit court, judges of the cookcounty.° f 
superior court of Cook county, members of the State board of 
equalization ; but no judge of the supreme court shall sit upon 
the hearing of any case in which he is a party. 

Sec. 97. The circuit courts of the respective counties shall of counties, 
hear and determine contests of the election of the judges of county seats, 
the county court of their counties, and in regard to the removal 
of county seats, and in regard to any other subject which may 
by law be submitted to the vote of the people of the county. 

Sec. 98. The county court shall hear and determine contests of county, 
of election of all other county, township and precinct officers, p^ecinVofficers. 
and all other officers for the contesting of whose election no 
provision is made. 



40 ELECTIONS. [DIV. I. 

Manner of con- Sec. 99. When any elector shall desire to contest the elec- 

S s s£te officer? ti° n °f governor, lieutenant-governor, secretary of state, 

auditor of public accounts, treasurer, superintendent of public 

instruction, or attorney general, he shall, within ten days after 

the result of the election shall have been determined, present 

a petition to the General Assembly, setting forth the points on 

which he will contest such election, and praying for leave to 

produce his proof. 

Gen. Assembly Sec. 100. The General Assembly shall appoint a joint com- 

mSte P e! mtC ° m ' m i ttee to ta ^ e tne testimony on the part of the petitioner, and 

the person whose place is contested. 
Powers of com- Sec. 101. The committee so appointed shall have power to 
mittee. sen( j f or witnesses, and compel the attendance of witnesses and 

the production of papers, issue commissions under the hand of 
its chairman, to any officer authorized to take depositions in 
other cases, to take the deposition of witnesses upon the points 
set forth in the petition, at such time and place as the com- 
mission shall direct. 
Notice to be Sec. 102. Reasonable notice shall be given by the party in 

given. whose favor the deposition is to be taken, to the opposite party, 

of the time and place of taking the same. 
Testimony, Sec. 103. No testimony shall be taken except upon the 

points set forth in the petition, 
committee to Sec. 104. The committee shall report the facts to the house, 
repor ' and a day shall be fixed by a joint resolution for the meeting 

of the two houses to decide upon the same, in which decision 
the yeas and nays shall be taken and entered upon the journal. 
v£L q ™™„ Sec. 105. The election of any member declared dulv elected 
test election of to a seat m the senate or house of representatives of the Gen- 
Gen. Assembly, eral Assembly, may be contested by any qualified voter of the 
county or district to be represented by such senator or repre- 
sentative. 
Notice of con- Sec. 106. The contestant shall, within thirty days after the 
test result of the election shall have been determined, serve on the 

person whose election he will contest, a notice of his intention 
to contest such election, expressing the points on which the 
same will be contested ; and shall, also, on or before the next 
session of the General Assembly, deliver a copy of such notice 
to the secretary of state. In case the person whose election is 
contested is absent, or cannot be found, service may be had by 
leaving a copy of such notice at his usual place of residence. (1) 

(1) The object of requiring the " points ; ' of contest to be stated, is for the purpose 
of informing the adverse party of the grounds of contest, so that he may prepare to 
meet them. Each party is therefore required, when he becomes the actor, to give 
notice of the specific grounds on which he intends to contest the election, or the cor- 
rectness of the returns or canvass. Taylor v. Taylor et al„ 10 Minn. R., 107. 



DIV. I.] CONTESTING ELECTIONS. 41 

Sec. 107. Whenever a notice shall have been given of inten- Testimony, be- 
tion to contest an election, as provided in the preceding section, [aken! hom 
either party may proceed to take testimony of any witness 
before any judge, justice of the peace, clerk of a court, master 
in chancery, or notary public, on giving to the adverse party 
or his attorney ten days' notice of the time and place of taking 
the same, and one day in addition thereto (Sunday inclusive) 
for every fifty miles travel from the place of residence of such 
party to the place where such deposition is to be taken. If the 
party entitled to notice resides in the county where the deposi- 
tion is to be taken, five days' notice shall be sufficient. 

Sec. 108. The officer before whom depositions are taken papers and wit- 
shall have power to compel the production of papers, and the nesses - 
attendance of witnesses ; and the same proceedings may be had 
to compel the attendance of witnesses as are provided in the 
cases of taking depositions to be used in courts of law and 
equity. 

Sec. 109. A copy of the notice to take depositions, with Notice to take 
proof of the service thereof, with the deposition, shall be sealed 
up and transmitted by mail, or otherwise, to the secretary of 
State, with an indorsement thereon, showing the names of the 
contesting parties, the office contested, and the nature of the 
papers. 

A court of chancery has no jurisdiction to inquire into the validity of elections. 
Nor will such jurisdiction be conferred by the mere omission of the particular case 
from the operation of the general law on the subject of contested elections. Moore 
V. Hoisington et al., 31 111. R., '243. 

The person who holds a certificate from the authorities appointed by law to can- 
vass the votes, declaring him elected to an office, and who has complied with the 
requirements of law in relation to the office, is entitled to the present possession 
thereof, notwithstanding the prior incumbent contests his election, denying its 
legality. Such contest is not an appeal, but is an original proceeding under our 
statutes, going behind the poll books, and purging the election. The People ex rel. 
Cummin gs v. Head, 25 111. R., 325. 

It is competent for the court and jury to go behind the certificate of the canvassers, 
for the purpose of determining who was legally elected to a contested office. Car- 
penter v. Ely, 4 Wis. R., 420. 

On the trial of a contested election, the members returned as elected, though sworn 
in, are not competent to vote on the question of the validity of their own election. 
Comma nweallh v. McCloskey, 2 Rawle (Penn.), 369. 

A petition complaining of an undue election and return, must set forth the facts 
with precision ; and they must be sufficient, if sustained by proof, to render it the 
duty of the court, either to vacate the election, or to declare that another person 
than the one returned was duly elected. 

Unless the petition be thus specific, and set forth facts that, if true, would have 
changed the result, it will be quashed, on motion. 

Mere irregularities, on the part of the election officers, will not vitiate the poll. 
SlxrrcU's Case. 2 Parsons (Penn.), 509; see also 8 New York, 67. 

The question whether a voter was or was not duly qualified, is not concluded by 
the decision of the inspectors; it is open to examination, in subsequent proceedings, 
upon any competent evidence. People v. Pease, 27 New York. 45. 

The title to an office confers upon the person elected a right to the fees and emolu- 
ments thereof, from the commencement of his legal term. 

An action for money had and received will lie by the officer de jure against one 
who has intruded into the office, by color of a certificate of election, to recover the 
fees received during the time of such intrusion. 

If the incumbent received his commission bona fide, he will be allowed, in such 
action, his reasonable expenses in executing the duties of the office, otherwise, if his 
intrusion were without pretense of legal tight. Mayfield v. Moore, Supreme Court of 
Illinois, reported in 3 Legal News, 114. 



42 



ELECTIONS. [DIV. I. 



Dutyofsec'yof Sec. 110. The secretary of state shall deliver the copy of 
state. t j ie not i ce deposited with him by the contestant, and the deposi- 

tions, unopened, to the presiding officer of the branch of the 
General Assembly to which the contest relates, on or before 
the second day of its session next after the receipt of the same ; 
and the presiding officer shall immediately give notice to his 
house that such papers are in his possession. 
Rights of Gen'i Sec. 111. Nothing herein contained shall be construed to 
affiSSL not abridge the right of either branch of the General Assembly to 
grant commissions to take depositions, or to send for and 
examine any witnesses it may desire to hear on such trial, 
whomaycon- ^ EC - H-- The election of any person declared elected to any 
test in certain office other than governor, lieutenant- go vernor, secretarv of 
state, auditor of public accounts, treasurer, superintendent of 
public instruction, attorney general, senator or representa: 
may be contested by any elector of the State, judicial division, 
district, county, town, or precinct in and for which the person 
is declared elected. 
Notice and Sec. 113. The person desiring to contest such election shall. 

points of such within thirty days after the person whose election is contested 



cases. 



g?ven! ttobe i s declared elected, file with the clerk of the proper court a 
statement, in writing, setting forth the points on which he will 
contest the election, which statement shall be verified by 1 1 
fit in the same manner as bills in chancery may be verified. 

Summons. Sec. 114. Upon the filing of such statement, summons shall 

issue against the person whose office is contested, and he may 
be served with process, or notified to appear in the same man- 
ner as is provided in cases in chancery. 

Evidence. Sec. 115. Evidence may be taken in the same manner, and 

upon like notice, as in cases in chancery. 

Case, how tried, Sec. 116. The case shall be tried in like manner as cases 
in chancery. 

contest of e^ec- Sec. 117. Any five electors of the county may contest an 

quesUons. otbere ^ ect i° n upon any other subject which may by law be submitted 
to a vote of the people of the county, upon filing in the circuit 
court, within thirty days after the result of the elect 
have been determined, a written statement in like form as in 
other cases of contested elections in the circuit court. The 
county shall be made defendant, and process shall be served as 
in suits against the county : and like proceedings shall be 
as in other cases of contested elections before such court. 

who may de- Sec. 118. In case the county board shall fail or refuse prop- 

fend " erly to defend such contest, the court shall allow any one or 

more electors of the county to appear and defend, in which case 



DIY. I.] RESIGNATIONS AND VACANCIES. 43 

the doctors so defending shall be liable for the costs in case the 
judgment of the court shall be in favor of the contestant. 

Sec. 119. The judgment of the court, in cases of contested Judgment of 
election, shall confirm or annul the election according to the court ' 
right of the matter ; or, in case the contest is in relation to 
the election of some person to an office, shall declare as elected 
the person who shall appear to be duly elected. 

Sec. 120. If it appears that two or more persons have, or Election to be 
would have had if the legal ballots cast or intended to be cast ^nit shall' 
for them had been counted, the highest and an equal number appe^t^at two 
of votes for the same office, the persons receiving such votes received an 
shall decide by lot, in such manner as the court shall direct, otvote"! 1111 er 
which of them shall be declared duly elected ; and the judg- 
ment shall be entered accordingly. 

Sec. 121. A certified copy of the judgment of the courts certified copy 
shall have the same effect as to the result of the election as if of J udgment - 
it had been so declared by the canvassers. 

Sec. 122. When the person whose election is contested is when election 
found to have received the highest number of legal votes, but Sared void, 
the election is declared null by reason of legal disqualification 
on his part, or for other causes, the person receiving the next 
highest number of votes shall not be declared elected, but the 
election shall be declared void. 

Sec. 123. In all cases of contested elections in the circuit Appeal to su- 
courts or county courts, appeals may be taken to the supreme preme cour * 
in the same manner, and upon like conditions as is provided 
by law for taking appeals in cases in chancery from the circuit 
courts. 

RESIGNATIONS AND VACANCIES. 

Sec. 124. Resignations of elective offices shall be made to Resignations. 
the officer, court or county board authorized by law to fill a *> whom made, 
vacancy in such office by appointment, or to order an election 
to fill such vacancy. 

Sec. 125. Every elective office shall become vacant on the when avacan- 
happening of either of the following events, before the expira- cy Wl11 occur * 
tion of the term of such office : 

First — The death of the incumbent. 

Second — His resignation. 

Third — His becoming insane. 

Fourth — His ceasing to be an inhabitant of the State ; or, 
if the office is local, his ceasing to be an inhabitant of the 
district, county, town or precinct for which he was elected. 



44 



ELECTIONS. 



[DIY. I. 



Fifth — His conviction of an infamous crime, or of any 
offense involving a violation of official oath.(l) 
Sixth — His removal from office. 

Seventh — His refusal or neglect to take his oath of office, 
or to give or renew his official bond, or to deposit or file such 
oath or bond within the time prescribed by law. 

Eighth — The decision of a competent tribunal declaring 
his election void. 
Vacancies, how Sec. 126. Whenever it is alleged that a vacancy in any 
office exists, the officer, court, or county board whose duty it 
is to fill the vacancy by appointment, or to order an election 
to fill such vacancy, shall have power to determine whether or 
not the facts occasioning such vacancy exist, 
in office of gov. Sec. 127. In case of vacancies in the offices of governor 
andiieut.gov. and lieutenant -governor, the officer performing the duties of 
the office of governor, or if there is no such officer, the secre- 
tary of state, shall issue a proclamation appointing a day for 
a special election to fill such vacancies ; and shall issue a writ 
of election to the county clerks of the several counties in the 
State, and shall also, when necessary, call a special session of 
the General Assembly to canvass the votes cast at such election ; 
but if such vacancies shall occur not more than ninety days 
before a general election for members of the legislature, the 
vacancies shall be filled at such general election, in which case 
no special session of the General Assembly to canvass the 
votes shall be deemed necessary, 
other state Sec. 128. "When a vacancy shall occur in the office of sec- 

officers, retary of state, auditor of public accounts, treasurer, attorney- 

general, superintendent of public instruction, or member of 
the State board of equalization, the governor shall fill the same 
by appointment, and the appointee shall hold his office during 
the remainder of the term, and until his successor is elected 
and qualified. 
vacancy in Sec. 129. "When a vacancy shall occur in the office of sena- 

o?repre2n£? r tor or representative in the General Assembly, it shall be the 
duty of the county clerk of the county in which the member 
whose office is vacant resided, to notify the governor of such 
vacany, whereupon the governor shall issue a writ of election 
to the county clerk or clerks of the county or counties in 
which the vacancy is to be filled, fixing a day upon which an 
election shall be held to fill such vacancy; but unless the 

(1) The trial and conviction of a sheriff, of the offense of bribing a voter previously 
to his election to the office, does not constitutionally disqualify him from exercising 
the duties thereof: it is not a " conviction of misbehavior in office or of any 
infamous crime," within the meaning of the Constitution. Commonwealth v. Shaver, 
3 Watts & Sergeant, Penn., 338. 



tive 



DIV. I.] TO WHAT ELECTIONS THIS ACT MAY APPLY. 45 

General Assembly shall be in session at the time the vacancy 
occurs, or there shall be a session between the time at which 
the vacancy occurs and the next succeeding general election, 
no special election shall be ordered to fill such vacancy. 

Sec. 130. When any vacancy shall occur in the office of Representative 
representative in Congress from this State, the governor shall m 
issue a writ of election to the county clerks of the several 
counties in the district where the vacancy exists, appointing a* 
day to hold a special election to fill such vacancy. 

Sec. 131. When a vacancy shall occur in the office of judge in office of 
of the supreme court, judge of the circuit court, judge of the J C oufS° 
superior court of Cook county, or judge of the county court, 
the clerk of the court in which the vacancy exists, shall notify 
the governor of such vacancy. If such vacancy shall occur 
within one year before the expiration of the term of the office 
made vacant, the governor shall fill such vacancy by appoint- 
ment ; but if the unexpired term exceeds one year, the gover- 
nor shall issue a writ of election, as in other cases of vacancies, 
to be filled by election. 

Sec. 132. When a vacancy shall occur in the office of clerk clerks of 
of the supreme court, clerk of the circuit court, clerk of the 
superior court of Cook county, or clerk of the county court, 
within one year before the expiration of the term of an office 
made vacant, the vacancy shall be filled by appointment by 
the court, or the judge or judges of the court to which the 
office appertains ; but if the unexpired term exceeds one year, 
the governor shall issue a writ of election, as in other cases of 
vacancies, to be filled by election. 

Sec. 133. When a vacancy shall occur in the office of county officers, 
county commissioner, State's attorney, sheriff, coroner, county 
clerk, recorder of deeds, county treasurer, county surveyor, 
justice of the peace, constable, or other county or precinct 
officer not otherwise provided for by law, within one year 
before the expiration of the term of such vacant office, the 
vacancy shall be filled by appointment, by the county board 
of the county in which the vacancy exists ; but if such unex- 
pired term exceeds one year, the county clerk, or in case of a 
vacancy in his office, the chairman of the county board shall 
issue an order appointing a day for an election to fill such 
vacancy, and cause notice thereof to be given as in other cases 
of election. 

TO WHAT ELECTIONS THIS ACT MAY APPLY. 

Sec. 134. The provisions of this act shall apply, as far as This act applies 
practicable, to all elections in the State, whether general, t0 al1 elections - 



46 



ELECTIONS. 



[DIV. I. 



Acts repealed. 



special, local or municipal, except so far as they are modified 
or contravened by other legal enactments. 

REPEAL. 

Sec. 135. The following acts are hereby repealed : Chapter 
thirty -seven, of the Revised Statutes of 1845, entitled "Elec- 
tions ;" an act entitled " An act to amend the seventh section 
of the thirty - seventh chapter of the revised laws of 1845, in 
relation to elections," approved February 23, 1847 ; an act 
entitled " An act to provide for the mode of voting by ballot, 
and for the manner of returning, canvassing and certifying 
votes," approved February 12, 1849; an act entitled "An act 
to provide for the filling of vacancies in certain county offices," 
approved November 6, 1849 ; an act entitled " An act to 
prevent illegal voting at elections," approved February 21, 
1861 ; an act entitled "An act to provide for ascertaining the 
qualification of voters, and to prevent fraudulent voting," 
approved February 22, 1861 ; and all other acts inconsistent 
with the provisions of this act : Provided, that this section 
shall not be construed so as to affect any rights or causes of 
action that may have accrued before this act shall take effect. 

CONSTITUTIONAL PROVISION. 

On the subject of qualification of voters, the Constitution, 
Art. VII, declares: 

" Sec. 1. Every person having resided in this State one year, 
in the county ninety days, and in the election district thirty 
days next preceding any election therein, who was an elector 
in this State on the first day of April, in the year of our Lord 
one thousand eight hundred and forty-eight, or obtained a cer- 
tificate of naturalization before any court of record in this State 
prior to the first day of January, in the year of our Lord one 
thousand eight hundred and seventy, or who shall be a male 
citizen of the United States, above the age of twenty-one years, 
shall be entitled to vote at such election." 



REGISTRY OF VOTERS. 

Sec. 1. The persons authorized by law, or appointed pursuant to 
any town or city ordinance, to act as judges or inspectors of elec- 
tions in any town, city, or ward, or other election district or pre- 
cinct in this state, (except the moderator of the town meeting in 
towns adopting township organization,) shall constitute a ''board of 
re<nstry" for their respective towns, cities, wards, districts, or pre- 

Aimnai meeting c [^ c ^ an d s hall meet on Tuesday, three weeks preceding any 
state, county, city, or town election, (except "town meetings" in 

exStST tI,Ig towns ado P tin o * n e township organization law,) at nine o'clock, 



Law»lS65, p. 
54. Feb. 15. 

Judges of elec- 
tion constitute 
"Board of 
Registry." 



PIV. 1.] REGISTRY ACT. 47 

A. M., and proceed to make a list, as hereinafter prescribed, of all Li8t of voUre - 

persons qualified and entitled to vote at the ensuing election in the 

election district of which they are judges or inspectors, which list, 

wHeri completed, shall constitute and be known as the " register of 

electors" of said election district; and said board may continue 

their session for the purpose of making said list, two days, if neces- Session twodays. 

sary : Provided, That at the last election in said district, prior to proviso. 

said meeting, the number of votes cast in said district exceeded 

two hundred. (1) 

Sec. 2. Said registers shall each contain a list of the persons so List of voters in 
qualified and entitled to vote in said election district, alphabetically order. etlC 
arranged, according to their respective surnames, so as to show, in 
one column, the name at full length, and in another column, in 
cities, the residence, by the number of the dwelling, if there be a Incltie9 ' 
number, and the name of the street or other location of the dwel- 
ling place of each person. It shall be the duty of said board to 
enter in said lists the names of all persons residing in their election Names of ail 
district, whose names appear on the poll list kept in said district at entered! ° 
the last preceding election; in cities the number of the dwelling 
and name of the street or other location, if the same shall be known ' 
to, or can be ascertained by, such board ; and for this purpose said Po11 Hat filed 

Hi civ Dti used 

board are authorized to take from the office in which they are filed 
the poll lists made and filed by the judges or inspectors of such dis- 
trict, at the election held next prior to the making of such register. 
In making said list, the board shall enter thereon, in addition to the 
names on the poll list, the names of all other persons who are well 
known tb them to be electors in said district ; and the names of all Names omitted, 
persons on the poll list who have died or removed from the district 
shall be omitted from said register. The said board shall complete, register. 10110 
as far as practicable, the said register on the day of their meeting 
aforesaid, and shall make four copies thereof, and certify the reg- 
ister and each of the copies to be a true list of the voters in their 
district, so far as the same are known to them. Within two days Lists when filed, 
thereafter, the said original list, together with the list taken from 
the office, as aforesaid, shall be filed by said board in the office of 
the town clerk of the town in which said election district may be ; 
but in counties not adopting township organization, said list shall 
be filed with the judges or inspectors of election of the proper 
district; or if such election district is in a city, then it shall be 
filed in the office of the city clerk of said city; and one copy of 
said list shall be kept by each of said judges or inspectors, and Copy to be kept 
carefully preserved by him for their use on the day or days herein- inspe U ct?rs. aD 

(1) Persons whose names are put upon the registry list, but who do not appear and vote 
at an election, are presumed to have left the election district, and therefore no longer voters 
therein. The registry list of voters is no better evidence of the number of legal voters in a 
district or county than the poll list. The vote cast is prima facie evidence of not only the 
result of the election, but also of the number of legal voters in the county. The .«-gistry 
lists do not rebut or overcome this presumption. People, ex rel. v Gamer, 47 111. R., 247 

The act of 1865, providing for the registry of electors, and to prevent fiauds in elections, 
does m>t apply to elections held for the purpose of deciding upoa the removal of a county 
Beat Bonn v. Smith et al, 47 111. R., 4j62. 



48 



ELECTIONS. 



[div. I. 



Copy of list to be 
posted. 



Penalty for tear- 
ing down. 



Printed copies 
may be posted. 

May be pub- 
lished. 



In case of new 
district, proceed- 
ings by Judges 
or Inspectors. 



List to embrace 
names known. 



Board shall again 
meet to revise 
and complete 
Hot. 



Hours of meet- 
ing. 



Proceedings of 
board 6hall be 
open. 



Duty of board to 
erase names of 
non-residents. 



after mentioned, for the revision and correction of the same. One 
copy of said list shall, immediately after its completion, be posted 
in some conspicuous place where the last preceding election in said 
district was held, and be accessible to any elector who may desire 
to examine the same or make copies thereof. Any person who 
shall take down, tear down, or deface any list so posted, shall be 
deemed guilty of misdemeanor, and shall be punished by a fine 
of fifty dollars, or by imprisonment in the county jail for a term 
of sixty days, or by both fine and imprisonment. The board may, 
in their discretion, cause printed copies of said list to be posted up 
in such places as they may direct, and may cause the same to be 
published in some newspaper in the county in which such district 
is situated, at an expense not exceeding one cent for each name on 
said list. 

Sec. 3. In case a new election district shall be formed by the 
organization of a new town, or by the division of any town or ward, 
or the incorporation of a city or town, the judges or inspectors of 
the election in the new district thus formed, may make their reg- 
istry of electors on the day prescribed by this act, in such manner 
as a majority of them may direct, and for that purpose may make 
a list, or cause to be made, a certified copy of the poll list or lists 
of the districts in which such new district is situated, or they may 
dispense with such list or lists, and proceed to make a register of 
electors from the best means at their command. Said lists shall 
only embrace the names of such persons as are known to them to 
be electors in their district, and shall be posted up and copies 
thereof made, as prescribed in the preceding section, and shall be 
corrected in the same manner that other lists are corrected. 

Sec. 4. The said board shall again meet, on Tuesday of the week 
preceding the said elections, in their respective election districts, 
at the place designated for holding the polls of the election, for 
the purpose of revising, correcting, and completing said lists, and 
for this purpose, in cities, they shall meet at eight o'clock in the 
morning, and remain in session until nine o'clock P. M. of that 
day and the day following ; and in other districts they shall meet 
at nine o'clock in the morning, and remain in session until four 
o'clock P. M. of that day. 

Sec. 5. The proceedings of said board shall be open, and all 
persons residing and entitled to vote in said district, shall be enti- 
tled to be heard by said board in relation to corrections or addi- 
tions to said register. One of the lists so kept by said judges or 
inspectors, as aforesaid, shall be used by them, on the day or days 
of making corrections or additions, for the purpose of completing 
the registry for such district. 

Sec. 6. It shall be the duty of said board, at their meeting for 
revising and correcting said lists, to erase therefrom the name of 
any person inserted therein who shall be proved by the oath of 
two legal voters of said district, to the satisfaction of said board, 
to be non-resident of said district, or otherwise not entitled to vote 



IHY. I.] REGISTRY ACT. 49 

in said district at the election then next to be held. Any elector 

residing in said district, and entitled to vote therein, may appear Elector may hav« 

before said board and require his name to be recorded on sa id bisriaiqeentered 

alphabetical list. Any person so requiring his name to be so en- Dnty of e]ector 

tered on said lists, shall make the same statement as to the street requiring hia 

and number thereof, and where he resides, required by the pro- f e red. ° 

visions of this act of persons offering their votes at elections ; and 

shall be subject to the same penalties for refusing to give such i n - Penaltyforrefna . 

formation, or for falsely giving the same, and shall also be subjecting to give infor- 

to challenge, either by the judges or inspectors, or either of them, matlon - 

or by any other elector whose name appears on said alphabetical 

list; and the same oaths may be administered by the judges or 

inspectors as now provided in case of persons offering to vote atan Aiii t . m 

, r . - . * ,,, -in •• Oathtobeadmin- 

election, and in case no challenge is made, ot any person requiring istered by judges 

his name to be entered on said alphabetical list, or in case of chal- or i QS P ector s. 

lenge, if such person shall make oath that would entitle him to vote 

in case of challenge at an election, then the name of any such person 

shall be added to the alphabetical poll list of the last preceding 

year. 

Sec. 7. After the said list shall have been fully completed, the Four copies of 
said board shall, within three days thereafter, cause four copies ££, ° 
of the same to be made, each of which shall be certified by them 
to be a correct list of the voters of their district; one of which 
shall be filed in the ofiice of the town clerk of towns, and in the where filed, 
office of city clerks in cities ; and one of which copies shall be 
delivered to each of said judges or inspectors. It shall be the duty p u t y of judges 
of the said judges or inspectors so receiving such lists, carefully to receiving list8, 
preserve the said lists for their use on election day, and to desig- 
nate two of their number, at the opening of the polls, to check the 
name of every voter voting in such district, whose name is on the 
register. No vote shall be received at any state, county, town, or No vote received, 
city election in this state, except at town meetings, in towns adopt- meeSng^unieM; 
ing the township organization law, if the name of the person offer- name is on the 
ing to vote be not on the said register, made on the Tuesday or regls el 
Wednesday preceding the election, unless the person offering to 
vote shall furnish to the judges of the election his affidavit, in Affidavit, 
writing, stating therein that he is an inhabitant of said district and 
entitled to vote therein at such election, and prove by the oath of a 
householder and registered voter of the district in which he offers Proof by,house- 
his vote, that he knows such person to be an inhabitant of the dis- holder - 
trict, and if in any city, giving the residence of such person within 
said district. The oath may be administered by one of the judges Oath, by whom 
or inspectors of the election, a* the poll where the vote shall be admiD18tere 
offered, or by any other person authorized to administer oaths; but 
no person shall be authorized to receive compensation for adminis- w j]j[2" < J n com " 
tering the oath. Said oath shall be preserved and filed in the office Qath reserT6d 
of the town or city clerk ; or, in case there be no clerk, then said a pm 
oath shall be filed with and preserved by the judges or inspectors of 
of the proper district. Any person may [be] challenged and the challenge 



50 



ELECTIONS. 



[DIV. I, 



Additional duty 
of clerk of elec- 
tion in keeping 
poll list. 



Street and num- 
ber to be given. 



Clerk to enter 1 
street and num- 
ber. 



Refusal to make 
statement. 



False statement 
punishment for. 



After canvass, 
poll lists at- 
tached together 
and filed. 



Board may ap- 
point a clerk. 



same oaths shall be put as now are or hereafter may be prescribed 
by law. (1) 

Sec. 8. The clerks at each poll, in addition to the duties now 
prescribed by law, shall enter on the poll list kept by them, in 
columns prepared for that purpose, opposite the name of each 
person voting, the same statement or minute as hereinbefore re- 
quired of the board in making the registry; but such entry is 
not to be made by them if the registry contains correctly the 
name and residence of such voter; and in all cases said clerk 
shall enter in a column opposite the name of each person not 
registered, the words "not registered." In cities, every elector, 
at the time of offering his vote, shall truly state the street in 
which he resides, and if the house, lodging, or tenement in which 
he resides is numbered, the number thereof. And the clerks of 
the polls, in case the name of such elector is not registered, shall 
truly enter in the appropriate column of the poll list, opposite the 
name of the elector, the street in which the elector resides, the 
number, in case the house, lodging, or tenement, is numbered; 
and if the same is not numbered, then the clerk shall enter " not 
numbered " in the column of the poll list for entering the number. 
In case of refusal to make the statement as aforesaid, the vote of 
such an elector shall not be received. Any person who shall will- 
fully make any false statement in relation thereto, shall be deemed 
guilty of misdemeanor, and shall, upon conviction, be punished 
with a fine of fifty dollars, or by imprisonment in the county jail 
in the county for a period of ten days, or by both such fine and 
imprisonment. 

Sec. 9. After the canvass of the votes, one of said poll lists and 
said register so kept and checked as aforesaid, shall be attached 
together, and shall, on the following day, be filed in the town or 
city clerk's office (as the case may be) in which said district may 
be ; or in case there be no such clerk, then such poll lists and reg- 
ister shall be filed with and preserved by the judges or inspectors, 
to be used by the board of registry in making the list of voters 
at the next election ; and the other of said poll lists and registers, 
so kept and checked (except in town and city elections,) shall be 
returned to the office of the county clerk of the county, in which 
said district may be, at the same time the returns of the elections 
are made. 

Sec. 10. The said board may, if necessary, on the day or days 
of the making and of the corrections of such lists, appoint a clerk 
to assist them in the discharge of their duties required by this 



(1) Under this act, a person who has not been registered as a voter, must not only show hy 
his own affidavit that he is an inhabitant of the district in which he offered his vote, but he 
must, in addition, establish such fact by the affidavit of a "householder and registered voter" 
of such district. In such case, the fact that the person so offering his vote was well known 
to the judges of the election, who knew that he resided in the district, and had previously 
been in the habit of voting therein, does not dispense with the proof required by the statute 
The requirements of this act, relative to the proof to be made by persons whose names have 
not been registered, are reasonable, and within the scope of legislative power, and are not 
calculated to abridge the elective franchise. ByUr et al. v. Asher, 47 111. R., 102. 



DIV. I.] REGISTRY ACT. ,01 

and the same oath shall be taken by such clerk as is required 
by law of clerks of the polls or of elections. 

Si;c. 11. The registers shall at all times be open to public inspec- Registers open 
tion, at the office of the authorities in which they shall be deposited, to pubhc * 
without charge. 

8 kg. 12. The member of the board of registration and their clerks Compensation of 
shall each receive the same compensation as is now allowed by law oar an c er 8 ' 
for judges or inspectors of elections, for each day actually employed 
in the making and completion of the registry, to be paid to them 
at the time and in the manner in which they are paid their other 
fees. 

Sec. 13. The said board shall have and exercise the same power Board may pn- 
in preserving order at their meetings, under this act, as are given 8orve order ' 
to judges and inspectors of elections for preserving order on elec- 
tion days j* and vacancies in said board shall be filled in the same 
manner that vacancies are now filled at elections. 

Sec. 14. Any person who shall cause his name to be registered Punishment f..r 
in more than one election district, or who shall cause his name to be Mme^bewg- 
registered knowing that he is not a qualified voter in the district fetered. 
where said registry is made, or who shall falsely personate any reg- 
istered voter, and any person causing, aiding, or abetting any person, 
in any manner, in either of said acts, shall be punished, for each 
and every offence, by imprisonment in the state prison for not less 
than one year. All intentional false swearing before said board of Perjury, 
registration shall be deemed willful and corrupt perjury, and on con- 
viction, punished as such. If any member or officer of said board violation of law, 
shall wilkuily violate any of the provisions of this act, or be guilty how punished, 
of any fraud in the execution of the duties of his office, he shall 
be punished for each and every offence by imprisonment in the 
state prison for not less than one year. (1) 

Sec. 15. An act entitled "An Act to prevent illegal voting atActsofisei 
elections," approved February 21, 1861, and an Act entitled " An amended * 
Act to provide for ascertaining the qualification of voters, and to 
prevent fraudulent voting," approved February 22, 1861, be and the Repealed, 
same are hereby amended by striking out the words " sixty days" 
in said acts, wherever the same occur, and inserting in the place 
thereof, the words " thirty days." 

Sec. 16. Section five of an act entitled "An Act to provide for Act °f Feb. 22, 
ascertaining the qualifications of voters, and to prevent fraudulent ' conetruei 
voting," approved February 22, 1861, shall be construed so as to 



(1) Members of the hoard of registry are not liable to indictment for refusing to insert 
the name of a voter upon the list, if thpy act honestly and in the exerciso of their best judg- 
ment. State v. Smith, 18 N. II. Rep., 91- 

And an information against the board of registry for rffusing to put a voter's name on the 
list, should allege that they knew his right to vote. State v. Daniels, 44 N. II. Rep., 383 ; 
Lombard v. Oliver, 7 Allen, (Mass.) R., 155. 

An action will not lie against the judge of an election, for refusing the vote of a person 
who was not registered as a voter, and who failed to comply with the requirements of section 
7 of the registry act, relative to the proof to be made in such cases. Nor will the fact, that 
such refusal was placed on grounds not tenable, change their liability. Bylcr U al. v. Asher, 
47 111. R.. 101. 



52 ELECTIONS. [DIV. I. 

require the number to be indorsed by the judges or inspectors of 

election on every ballot cast, and in elections, general or special, in 

£ummentat ad ~ pursuance of any law of this state, after the opening of the polls. 

elections. no adjournment shall be had, nor shall any recess be taken until all 

the votes cast at such election shall have been counted and the 

result publicly announced, provided that judges and inspectors of 

election shall each be allowed the sum of two dollars for each and 

i C a ™?s nsation ofevei 7 ^ a y's service by them performed under the requirements of 

this act. 

Secretary of state Sec. 17. The secretary of state shall cause this law to be 

be printed with P rmt ed in pamphlet form, with suitable forms and instructions for 

forms, and dis- carrying it into effect, together with the general election law of 

the state, and a sufficient number of copies thereof sent to each 

county clerk in every county in this state to supply each of the 

officers named in this act with a copy. And it shall be the duty of 

each of said clerks to immediately transmit a copy of the same to 

each of the judges or inspectors of election in his county. 

Secretary of state Sec. 18. The necessary blanks for making the registers required 

HarK*™ by law, shall be prepared by the secretary of state and transmitted 

to the persons entitled to receive them, in the same manner that 

blank returns of elections are now transmitted. 

Not to affect Sec. 19. Nothing contained in this act shall be construed in any 

■Hlfl.t ^ t* manner to affect the provisions of any act that has been or may be 

same session. r _ ^i* 7 ^ 14 -,, * 7 11 

passed at the present session or the General Assembly, to enable 
the qualified electors of this state, absent therefrom, in the military 
service of the United States, in the army or navy thereof, to vote. 



ELECTION AND DUTIES OF RECORDERS OF 
DEEDS. 

^Is 1 ? '. Sec. 1. There shall be elected on the Tuesday next after 

Apr. 16,* 1872I th e fi rs t Monday of November, in the year of our Lord one 

' Y ' thousand eight hundred and seventy -two, and every four 

Election -term years thereafter, in all counties having sixty thousand and 

of office. more inhabitants, a recorder of deeds. The said recorder of 

deeds shall enter upon the duties of his office on *the first 

Monday in December after his election, and shall continue in 

office for and during the term of four years, and until his 

successor shall be elected and qualified. 

office at county Sec. 2. The said recorder of deeds shall keep his office at 

seat " the county seat of the county in which he is elected, and in 

such building and rooms as shall be provided for him by the 

board of supervisors of such counties ; and it shall be the 

duty of the board of supervisors in such counties to provide 



DIV. I.] ELECTION AND DUTIES OF RECORDERS OF DEEDS. 53 

all the necessary books, blanks and stationery for the use of 
the recorder of deeds, and also to provide suitable fire -proof 
buildings in which such books and records can be safely kept. 

Sec. 3. The recorder of deeds shall, before • entering upon Oatn>nd bond, 
the duties of his office, take the oath provided by the Constitu- 
tion of the State of Illinois, faithfully to discharge the duties 
of the office of recorder of deeds, according to the best of his 
ability, and shall give a bond to the People of the State of 
Illinois, in the penal sum of five thousand dollars, with good 
and sufficient securities, to be approved by the county judge 
of the county in which said recorder is elected, conditioned 
for the faithful discharge of the duties of his office — which 
bond shall be filed and preserved] in the office of the county 
treasurer. 

Sec. 4. It shall be the duty of the recorder of deeds to Duties.?; 
record in a plain and legible hand -writing, in such books 
as are provided for the purpose, all deeds, mortgages, plats 
of surveys, and other instruments of writing authorized by 
law to be recorded when presented for record, according' to 
the time of the priority of presentation. 

Sec. 5. Upon the presentation of any deed, mortgage, or indorsement 
other instrument of writing for record, the recorder shall rece?ved? meats 
indorse thereon the date of its presentation, and if the same 
be a mortgage, the precise time of day at which it was 
received: by him. And if required, he shall give to the per- 
son presenting any instrument for record, a receipt therefor, 
naming in the receipt the parties to such instrument, and the 
nature of its contents ; and when such deed or other instru- 
ment of writing shall have been recorded, the recorder shall 
indorse on the same the date when recorded, and also the 
number or letter of the book, and the page or pages of the 
book in which the same is recorded. 

Sec. 6. The recorder of deeds shall procure a seal, at the Sealofrecordcr 
expense of the county, and shall make for any person demand- 
ing the same, an exact copy of any record in his office, and 
shall certify the same to be a true copy, and shall affix his 
name and the official seal of his office to such certificate ; and 
at the expiration his term of office he shall deliver to his suc- 
cessor all records and papers, and every species of property 
belonging to the said office, and take his receipt for the same. 

Sec. 7. If any recorder of deeds shall refuse to receive any Failure to per- 
deed or other instrument in waiting presented to him for p° e r naiues! es ~ 
record (the legal fee for recording the same having been paid 
or tendered), or shall refuse to receipt therefor, or shall, with- 
out good excuse, neglect or refuse to record the same within a 



pensation. 



54 ELECTIONS. [DIV. I. 

reasonable time, or shall demand and receive any greater fee 
for any service connected -with his office than is allowed by 
law, or shall knowingly indorse on any deed, or other instru- 
ment of writing, a different date from that on which the same 
was presented for record, or a different date from that on 
which it was recorded, or if he shall either unlawfully or 
negligently allow any book, record, or other valuable thing 
connected with his office, to be defaced or destroyed, he shall 
be liable to a suit for damages on his official bond, at the 
instance and for the use of any person damaged by such neg- 
ligent or willful misconduct, and he may also be indicted 
therefor, and if convicted on such indictment may be fined 
in any sum not exceeding five hundred dollars, for the use of 
the county, and he shall forthwith be removed from office by 
an order of the court in which such trial and conviction was 
had. 
Pecs and con- Sec. 8. In counties having a population of more than sixty 
thousand and not less than one hundred thousand inhabitants, 
where a recorder of deeds shall be elected under the provisions 
of this act, such recorders shall receive as their only compen- 
sation a salary, to be fixed by the county board of their 
respective counties ; and the said county board shall also fix 
upon the amount to be paid for their necessary clerk hire, 
stationery, fuel and other expenses. And the said recorder 
of deeds shall charge, for recording all such instruments as 
are presented to them for record, only such fees as are pro- 
vided by general law for recording the same in counties whose 
recorders of deeds are authorized by law to be elected ; and 
they shall semi-annually, under oath, make a report in writing 
to the county treasurer of their respective counties, of all fees 
and emoluments received by them ; and they shall, at the 
time of making such report, pay over to their respective 
county treasurers, for the use of the county, all moneys in 
excess of what they are entitled to retain as salary. The 
number of his deputies and assistants shall be determined by 
rule of the circuit court, to be entered of record; and the 
compensation of such deputies and assistants shall be deter- 
mined by the county board : Provided, said compensation 
shall be paid only out of, and shall in no instance exceed, the 
fees actually collected. And the recorder of deeds in Cook 
county shall charge for recording all instruments in writing 
only such fees as are allowed by general law for recording in 
said county of Cook; and he shall make a semi-annual report, 
under oath, to the county treasurer of said county, in writing, 
of all fees and emoluments received by him, and shall, at the 



DIV. I.] ELECTION AND DUTIES OF RECORDERS OF DEEDS. 55 

time of making such report, pay over to the said treasurer, 
for the use of the county of Cook, all fees and emoluments 
received from his said office, above the amount which he is 
entitled to retain as salary : Provided, that in no county 
where a recorder of deeds shall be elected under the provisions 
of this act shall the compensation allowed to him, or his depu- 
ties and assistants, exceed the fees actually collected from said 
office. 

Sec. 9. In all counties where a recorder of deeds shall he cicrks of courts 
elected under the provisions of this act, and where clerks of books 1 etc. 
courts are, at the time of such election, acting as ex -officio 
recorders of deeds, the clerks last named shall deliver over 
to the recorder of deeds, on the first Monday of December 
next after such election, all books, papers, documents and 
instruments of writing which will properly belong to the office 
of recorder of deeds, and shall take his receipt for the same. 

Sec. 10. If the office of recorder of deeds shall become vacancies in 
vacant, by reason of death, resignation or removal, or from office- 
any other cause whatever, it shall be the duty of the county 
court of such county to appoint some suitable person to act as 
recorder of deeds until the next annual election, and such 
person so appointed shall take the necessary oath, and give the 
official bond required, the same as if he had been originally 
elected to such office. 



56 COUNTIES AND COUNTY AFFAIRS. [DIV. II. 

DIVISION II. 

COUNTIES AND COUNTY AFFAIRS. 

BET. STAT., 
CHAP. 27, P. 
281. COUNTY COMMISSIONERS COURTS. '(1) 

Section 1. Each county which has heretofore been, or may 
hereafter be established in this state, according to the laws thereof, 
shall be a body politic and corporate, by the name and style of 

st ? le - u the county of ," and by that name may sue and be sued, 

plead and be impleaded, defend and be defended against in any 
court of record, either in law or equity, or other place where jus- 
tice shall be administered. (2) 

(1) The county commissioners court was superceded, under the constitution of 
1848, by the county court, and its powers transferred to the latter. In counties adopting town- 
ship organization, the affairs of counties are transferred to tne board of supervisors See post 
Art. 14. p. 188. paragraph 8th. The People v. Thurber, 13 111. ft., 5-54 ; Green et al. v. Wardwell, 
et. al, 17 111. R., 278. The board of supervisors, therefore, in determining their whole duties, 
will have to look back through the statutes relating to the powers and duties of county com- 
missioners and county courts. It being the object of this compilation to embrace all the law 
in force applicable to township organization, iucluding that which relates to the powers and 
duties of boards of supervisors, that portion of the statute relating to county commissioners 
and county courts, and county affairs under their management, is here inserted. 

For further powers of counties, acting under township organization, see the township organ- 
ization act, Art. 18, post, p. 132. 

(2) Proceedings by and against counties, under township organization, are required 
to be in the name of the board of supervisors. See Art. 13, Sec. 3, post, p. 133. 

Counties are merely a species of corporation with corporate powers, under a condition 
and a few specified purposes only, but deficient in many of the powers incident to the general 
character of corporations. Goodnow v. Comnvrs Ramsey Co., 11 Minn. R., 41. 

County Seat and County Boundaries. — Formerly, as a general rule in the several 
states, there was no constitutional restriction upon the legislature in regard to county lines 
and the location of county seats; but experience in the west has induced in the new states a 
constitutional provision on this subject. The constitution of Illinois declares as follows : . 

Art. X. Sec. 1. No new county shall be formed or established by the General Assembly, 
which will reduce the county or counties, or either of them, from which it shall be taken, to 
less contents than four hundred square miles; nor shall any county be formed of less con- 
tents ; nor shall any line thereof pass within less than ten miles of any county seat of the; 
county or counties proposed to be divided, 

Sec. 2. No county shall be divided, or have any part stricken therefrom, without submit- 
ting the question to a vote of the people of the county, nor unless a majority of all the legal 
voters of the county voting on the question, shall vote for the same. 

Sec. 3. There shall be no territory stricken from any county unless a majority of the voters 
living in such territory shall petition for such division ; and no territory shall be added to 
any county without the consent of the majority of the voters of the county to which it is 
proposed to be added. But the portion so stricken off and added to another county, or 
formed in whole or in part into a new county, shall be holden for, and obliged to pay its 
proportion of the indebtedness of the county from which it has been taken. 

Sec. 4. No county seat shall be removed until the point to which it is proposed to be 
removed shall be fixed in pursuance of law, and three-fifths of the voters of the county, to be 
ascertained in such manner as shall be provided by general law, shall have voted in favor 
of its removal to such point; and no person shall vote on such question who has not resided 
in the county six months, -and in the election precinct ninety days next preceding such elec- 
tion. The question of the removal of a county 'eat shall not be oftener submitted than 
once in ten years to a vote of the people. But when an attempt is made to remove a 
county seat to a point nearer to the centre of a county, then a majority vote only shall be 
neceasary. 

The legislature cannot abolish counties, and form their territory into one or more counties, 
nor take territory from one county and add it to another, without submitting the act to a 
vote of the inhabitants affected by such changes ; nor can a county seat be removed without 
the affirmative vote of the electors of the county, nor can county lines be changed except by 
the vote of a majority of all the legal voters voting en the question. The People v. Marshall, 
12 111. R., 391 ; TJie People v. Warfield, 20 111. R., 160. 

A legislative enactment, in the absence of any constitutional provision, which provide* 
that a county seat shall not be removed unless on petition of a majority of the voters of th» 



DIV. II.] COUNTY COMMISSIONERS' COURTS. 57 

Sec. 2. There shall remain, as at present established, in each County Commis- 

a i • i i it i i i« i i ■ i i Burners' court. 

county or this state, and shall be established in each county here- 
after created, a court of record, to be constituted, composed of three 
commissioners, elected by the people as hereinafter provided, to be 
styled l{ the county commissioners' court of county/' 

Sections 3, 4, 5, G, 7, relate to the election and qualification of county 
commissioners, and are superceded by act of February 12, 1849. See 
post, p. 29. 

Sections 8, 9, 10, 11, 12, 13, relate to county commissioners' clerk, his 
election and duties. Superceded by act February 12, 1849. See post, 
p. 29. 

Sec. 14. All deeds, grants and conveyances, heretofore made, Deeds of convey, 
or which shall hereafter be made, and duly acknowledged and ance > now made * 
rocorded, as other deeds conveying any lands, tenements or heredi- 

county, is merely advisory, and does not deprive the legislature of the right to do so without 
petition. Turley v. Logan Co., 17 ill. R., 151. 

The question of the location of a couuty seat must ho inquired into by a direct proceeding. 
It cannot be determined collaterally. Robinson v. Moore, 21 111. R., 135. 

A conveyance of land to a county, in consideration of the location of a county seat at a 
particular place, does not deprive the legislature of the right to remove the same whenever 
the public good shall require a change; nor does such conveyance, if unconditional, give the 
donors of tne property a right of action for damages sustained in consequence of such 
removal Ev9n had the donors of the property made an express agreement that the land 
should revert in case of the removal of the county seat, it would not avail them, unless it 
had been expressed on the face of the deed, or in ». separate instrument. Such an agree- 
ment cannot rest in parol. Adams v. Logan Co., 11 111. R., 336 ; Harris v. Shaw, 13 111. 
R., 456. 

There cannot be two separate locations of a county seat at the same time ; neither can 
there be a right of reverting or returning to a former location, without an express law to 
that effect. Where a county seat is located temporarily at a point for a time mentioned, it 
will there remain for that time, and until a new location is fixed by law ; which the legis- 
lature would have the power to fix, as in the case of organizing a new county. Lord ex rel., 
etc., v, Washington Co., 2 Chand. Wis. R., 247. 

Where, by division of a county, or creation of a new one, it is without a county seat, it may 
be established by the legislature without submitting it to the people. Powers ex rel., etc., 
v. Larrabee, 1 Wis. R., 200. 

Cpon tne division of an old county, if the old county seat remains within its limits, it 
will continue to be its county seat; but if it falls within the limits of the new county it will 
not thereby become the county seat of that county. Attorney General v. Fitzpatrick, 2 Wis. 
R., 542. 

The result of an election on the question of removal of a county seat may be tested by 
mandamus to compel a county officer to hold his office at the place to which it is alleged to 
hive been removed. Field ex rel., etc., v. Saxton et al., 1 Wis. R., 217 ; Gates ex rel., etc., v. 
Fetter, 12 id., 567. 

In determining the area of a county, bodies of water lying within its boundaries are to be 
computed and considered as integral" parts thereof. Powers ex rel., etc., v. Larrabee, 1 Wis. 
R., 200. 

The government surveys are to be deemed correct, and a county containing just twenty- 
five townships, according to government survey, is to be deemed prima facie to contain an 
area of exactly nine hundred square miles. Brayton ex rel., etc., v. Merriman, 6 Wis. R., 14. 

Although the legislature, in an act submitting to the electors the question of a division of 
their county, may have prescribed a form for the ballot, yet all other ballots not in that 
precise form are not thereby excluded; but when the intention of the elector can be clearly 
ascertained from the ballot itself, or by the aid of other competent evidence, such iutention. 
should have effect, and the vote be counted. Spaulding ex rel., etc., v. Elwood, 12 Wis. 
R., 551. 

Counties are public corporations, and are completely under legislative control. They can 
be changed, modified, enlarged, restrained or repealed, to suit the ever varying exigencies of 
the state, subject to the constitution. Coles v. Madison Co., Breese 111. R., 154 ; The People 
v. Wren, 4 Scam. 111. R„ 269. 

In changing the boundary between two counties, a majority cf the votes polled in each 
county is necessary to effect the change. Opin. A.tt'y Gen'l Cole, vol. 1, p. 121. 

Kr.w Counties. — A county may be created and have existence as such, notwithstanding it 
has no couuty officers. And where a new county is created by setting off for that purposo 
organized townships from existing counties; the supervisors of these townships would uo 
supervisors in the new county, and their powers would continue under the general law regu- 
lating the same, unless there be some provision to the contrary in the law creating the new 
county. Rice v. Ruddiman, 10 Mich. R., 125. 



58 



COUNTIES AND COUNTY AFFAIRS. 



[DIV. II. 



Commissioner to 
eell land may be 
appointed. 



Suit on, how 
prosecuted. 



Agents for 
county may 
appointed. 



Actions against 
county, where 
prosecuted. 



Service of pro- 
cess. 



tament, to any county, or the inhabitants of any county and their 
successors, or to the county commissioners, or to the county com- 
missioners' court, or to the governor, or any other person or persons 
by whatever form of conveyance, for the use and benefit of any 
county, shall be good and valid to all intents and purposes, to vest 
in such county in fee simple or otherwise, all such right, title, 
interest and estate as the grantor or grantors in any such deed or 
conveyance had at the time of the execution thereof, in the lands 
conveyed, and was intended thereby to be conveyed. 

Sec. 15. The county commissioners' court may, by their order, 
to be entered on their minutes, appoint a commissioner to sell and 
dispose of any real estate of their county, and the deed of such 
commissioner, under his proper hand and seal, for and in behalf of 
such county, duly acknowledged and recorded, shall be sufficient 
to all intents and purposes, to convey to the purchaser or purchasers, 
all the right, title, interest and estate whatever, which the county 
may then have and in to the premises so to be conveyed. 

Sec. 16. All notes, bonds, bills, contracts, covenants, agreements 
or writings made, or to be made, whereby any person or persons is, 
are or shall be bound to any county or the inhabitants thereof, or 
the county commissioners, or county commissioners' court, or to the 
governor, or any other person or persons, in whatever form, for the 
payment of money, or any debt or duty, or the performance of any 
matter or thing to the use of any county, shall be as valid and 
effectual to all intents and purposes, to vest in the said county all 
the rights, interest and actions, which would be vested in any indi- 
vidual, if any such contract had been made directly to him ; suits 
may be commenced, sued and prosecuted thereon in the name of 
said county, as is provided in the first section of this chapter, or in 
the name of the person to whom they are made, to the use of the 
county, as fully and effectually to all intents and purposes, as any 
person may or can upon like notes, bills, bonds, contracts, agree- 
ments or writing made to him. 

Sec. 17. The county commissioners' court may appoint an agent 
or agents, to make any contract on behalf of such county for erecting 
any county building, or for any other purpose authorized by law. 
The contracts of such agent or agents, duly executed for and on 
behalf of such county, shall be valid and effectual to bind such 
county to all intents and purposes. 

Sec. 18. All actions, local or transitory, against any county, 
may be commenced and prosecuted to final judgment and execution 
in the circuit court of the county against which the action is brought, 
Any action, local or transitor} T . in which any county shall be plain- 
tiff, may be commenced and prosecuted to final judgment, in the 
county in which the defendant in such action resides. "When any 
action shall be commenced against any county, a copy of the sum- 
mons shall be left with the clerk of the commissioners' court, either 
during the sitting of said court, or so as a term of said court shall 
intervene between the day of leaving a copy of such summons and 



DIV. II.] COUNTY COMMISSIONERS' COURTS 59 



the return day thereof (1). There shall always be ten days between 
the service and return of every such summons. In all actions 
brought by or against every county, the inhabitants of the county 
so Bueing, or being sued, may be jurors or witnesses, if otherwise 
competent or qualiiied according to law. 

Sec. 19. It shall be the duty of the county commissioners' court Commissioners to 
of each of the counties of this state, to take and order suitable and order BullB ' 
proper measures for the prosecuting and defending of all suits to be 
brought by or against their respective counties. 

Sec 20. When any judgment shall be rendered against any Judgment8 
county, it shall be the duty of the county commissioners' court to against counties, 
order a warrant to be drawn on their treasurer for the amount of ow p£U ' 
the judgment and costs ; which warrant shall be paid as other 
county debts. Nothing herein contained shall authorize any ex- 
ecution to be issued against lands or other property of any county 
of this state. 

Sec. 21. All the counties of this state or which shall hereafter jurisdiction of 
be erected, which are or shall be bounded, or which may front on c ? untiea on 

. > J rivers. 

either the Mississippi or Wabash rivers, shall respectively have and 
exercise jurisdiction upon such rivers so far as the counties shall 
respectively be bounded by the rivers aforesaid; which jurisdiction Concurrent juris- 
shall be exercised concurrently by the counties aforesaid, with the dlctum - 
contiguous states and territories bounded by said rivers, so far 
and to such extent as the rivers shall form the boundary of the 
counties aforesaid respectively ; and also the boundary between this 
state and contiguous states or territories. 

Sec 21a. That hereafter the jurisdiction of the state of Illinois La-ms 1819, p. 
shall be considered as extending, and as being concurrent with the * 34 ! ^* b ' 9 * 

rvi-° • ° Jurisdiction over 

state oi Kentucky over the Ohio river. rivers. 

Sec. 21b. Each of the several counties of this state lying on the 

Ohio river, and bounded thereby, are hereby invested with con- Jurisdiction of 

, • • t ,. ,-l -i « »i • counties con- 

current jurisdiction over the said river in all cases occurring on current, id. 

said river, and opposite to each of the said counties. 

Sec. 21c. Nothing herein contained shall be so construed as to Id ' 

extend the jurisdiction of said state over any islands in said river Kentucky. 

included within the corporate limits of any county in the said state id. 

of Kentucky. 

Secs. 22, 23, 24, relate to sessions of the county commissioners' court, ; 
superceded by act of Feb. 12, 1849. See post, p. G2. 

Sec. 25. The said courts shall have jurisdiction throughout Jurisdiction of 
their respective counties in all matters and things concerning the court * 
county revenue, and regulating and imposing the county tax, and 
shall have power to grant licenses for ferries and for taverns, and 
all other licenses and things that may bring in a county revenue ; 
and shall have jurisdiction in all cases of public roads, canals, turn- 
pike roads and toll bridges, where the law does not prohibit the 
said jurisdiction of said courts; and shall have power and juris- issue writ*. 

(1) Amended by the township act. See Art. 13, §5 post, p.134. 



60 



COUNTIES AND COUNTY AFFAIRS. 



[div. 



II. 



To procure 
county seals 



Judicial seal. 



diction to issue all kinds of writs, warrants, process and proceed- 
ings by the clerk, throughout the state, which are necessary to the 
execution of the power and jurisdiction with which such courts are 
or may be vested by law. 

Sec. 26. It shall be the duty of the county commissioners in 
each county, as soon as practicable, to cause to be procured all the 
necessary official seals that may be requisite in their respective 
counties j and they shall be, and are hereby authorized to draw on 
the county treasurer for the expense of any such seal or seals, 
which shall be paid for in the same manner as other county debts 
are paid. 

Sec. 27. The said court of each county shall have a judicial 
seal ; and all warrants, writs, process and proceedings to be issued 
by said court, shall be sealed with said seal, bearing date the time 
they issue, and be signed by the clerk of said court. All such 
style of process, process shall run " In the name of the people of the state of Illinois" 
and may be executed and returned as other process, by the sheriff 
or any constable of the county. 

Sec. 28. The said court of each county respectively, shall have 
power and jurisdiction to compel and enforce by writ or writs of 
attachment, or other process, the orders, decrees or judgments of 
said courts respectively. 

Sec. 29. There shall be nothing contained or construed in this 
chapter, to give the said court any original or appellate jurisdiction 
in civil or criminal suits or actions, wherein the state is a party, or 
any individual or individuals, bodies politic or corporate, are par- 
ties; but said court shall have jurisdiction in all cases where the 
matter or thing brought before the said court relates to the public 
concerns of the county collectively, and all county business, and 
the said court shall have power to punish for contempt, as other 
courts may do, and have all the power necessary to the right exer- 
cise of the jurisdiction with which said court is or may be vested 
according to law ; and the clerks of said courts respectively, shall 
have the same fees, emoluments and perquisites of office, as are 
given to the other clerks of courts of this state by law, for the like 
services, or as may be given them by law. 



May enforce 
writs. 



Jurisdiction 
limited and 
restricted. 



May punish for 
contempt. 



Commissions to 
erect jails. 



To report to 
circuit court. 



Secs. 30, 31 relate to fines and penalties. Repealed by the school law. 
Laws 1865, \ 28, p. 124. 

Secs. 32, 33 relate to county commissioners. Superceded by act Feb. 
12,1849. Sue post, p. 62. 

Sec. 34. It shall be the duty of the county commissioners' courts, 
in their respective counties, to prepare or cause to be erected, when, 
in the opinion of said court, the means of the county are such as 
to justify it, and where they have not heretofore done so, strong 
and substantial jails, so that prisoners may be confined therein 
with safety; and the said commissioners are hereby expressly 
charged with the faithful execution of this law, and they shall make 
report thereof respectively, to the circuit court, at the next term 



IHV. II.] COUNTY COMMISSIONERS' COURTS. 61 

in the county after the same shall have been done, and said report 
shall be entered upon the records of the said circuit court. (1) 

Sec. 35. It shall also be the duty of the said county comniis- To erect court 
sioners, in each county, to cause to be erected, when, in the opinion house - 
of said court, the means of the county are such as to justify it, a 
suitable court house in each of their respective counties; and they Contract to ercct 
shall have power to enter into contracts from time to time, with court house, 
any person or persons, in behalf of the county, for the erection of 
such court houses, or finishing any court house already begun, at 
any regular term of their court, or at any special term they may 
appoint. 

Sec. 36. The county commissioners' courts in each county, shall Lot t0 eject . 
have power to contract for and procure, for the use of their on? n J ™ lng8 
respective counties, whenever it shall become necessary, any lot or 
lots of land, whereon to erect such county buildings, and obtain 
deeds of conveyance to such counties, and to sell and convey the 
same when it shall become necessary, to any purchaser or pur- 
chasers, in the manner prescribed by law. 

Sec. 37. The county commissioners' courts of any county in May lease rooms 
this state are hereby authorized to lease such vacant room or rooms iotoccupSby 
as officers, as may be in the court house of said counties and not officers, 
occupied by and furnished for the sheriff, clerk of the circuit court, 
clerk of the county commissioners' court, and probate justice of 
the peace of said counties, for any term not exceeding one year, 
and for such rent or rents as" they may think right and proper. 

Sec. 38. The county commissioners of said counties shall have Custody of court 
the care and custody of said court houses ; any law or usage to the 
contrary notwithstanding. 

Sec. 39. Hereafter, in all cases of division of any county in this County lines. 
state, by petition or otherwise, it shall not be lawful to establish any 
boundary line within less than ten mijes of the seat of justice of 
the county to be divided. 

Sec. 40. Hereafter no county in this state shall be curtailed in its Size of counties 
limits so as to reduce the territory to less than four hundred square 
miles, nor shall any county be created hereafter, the territory of 
which shall contain less than four hundred square miles. 

Sec. 41. It shall be the duty of the commissioners' court of each clfconcern^of* 
county to cause a complete statement in writing of the fiscal con- county, 
cerns of the county to be made out at their March term, annually, 
which shall specify the amount of money paid out of the county 
treasury during the preceding year, to whom paid, and for what 
purposes; and likewise the amount of the county orders issued 
and unredeemed during the same year ; and the clerk of said court 
shall keep said statement posted up in his office for the period of ^enJent. 08 ' 
one month at least, from the end of said term ; and for failing to 

(1) Like duty required of board of supervisors. See township act, Art. 14, £14, post, p. 139. 

Where persons are employed by a sheriff as a temporary guard for the protection of a 
county jail, the county is liaule directly to such persons for their service, and not to the 
sheriff. Neville v. Solano County, 29 Cal. R., 251^ 



62 



COUNTIES AXD COUNTY AFFAIRS. 



[div. II. 



Penalty. 



Fire proof re- 
corder's office. 



Proviso. 



perform this duty he shall pay a fine of ten dollars. Each county 
commissioner who shall neglect to cause such statement to be made 
out, shall also pay a fine of ten dollars, to be recovered by action 
of debt, at the suit of any individual, before any justice of the peace 
of the county; one-half for the use of the county, and the other 
half, with costs of suit, for the use of the person so sueing. 

Sections 42, 43, relate to appeals from county commissioners' courts. 
Superceded by act February 17, 1851. See post, p. 67. 

Sec. 44. The county commissioners' courts of the several coun 
ties in this state, are hereby authorized and required, whenever the 
finances of any county in this state shall justify such expenditure, 
to cause to be erected a fire proof recorder's office, on some suit- 
able lot at their respective county seats, and pay for the same in 
the same manner as court houses and jails are paid for: Provided, 
That if the county commissioners' court of any county as aforesaid 
shall be of opinion that any one of the rooms unappropriated in 
their court houses respectively can be made fire proof, they shall be 
required and authorized as aforesaid to cause such improvements 
or additions to be made to any such room as will render the same 
fire proof; in which said fire proof buildings or room the records 
and office of county recorder shall be kept. 

Sec. 45. The provisions of the foregoing section may, at the dis- 
cretion of the county commissioners' court of any county in this 
state, be deemed to apply to the offices of clerks of the county com- 
missioners' and circuit courts respectively. 

Sec. 45a. The respective county commissioners' courts of this 
state be, and they are hereby authorized to erect, build and pro- 
vide permanent fireproof rooms, houses or vaults, for the purpose 
of placing therein and preserving from injur}-, damage, loss or 
destruction by fire, the records and documents of their respec- 
tive counties. 

Sec. 46. In all cases when orders for money are issued by the 
clerk of any county commissioners' court, in any county of this 
state, upon the treasurer of said county, the said orders, before 
they are delivered to the person or persons for whose benefit the 
same is or are drawn, shall be severally presented by the clerk to 
the said treasurer, who shall personally countersign the same ; and 
shall also enter in a book, to be kept for that purpose, the date, 
amount and number of each of said orders, and the name or names 
of the person or persons in whose favor such orders are drawn 
respectively. (1) 



Other clerk's 
offices. 



Rpt. Stat,, p. 
573. 

Fire proot build- 
ings for records. 



County orders to 
be countersigned. 



(1) County orders are not negotiable under tbe law merchant ; while they are assignable 
under the statute, they are subject to any defence iu the hands of the assignee that might 
have been made against the payee. Clark v. Polk County, 19 Iowa R., 213. 

A person 2>* l rchasitiQ county bonds or evidence of indebtedness issued by county 
commissioners or boards of supervisors, is bound to take notice of their authority and of the 
regularity and validity of their proceedings in issuing such paper. The rule of commercial 
paper in "the hands of innocent holders, without notice before maturity, does not app-y in such 
cases, for the canity board have not generally the power to make such paper. Goodnow 
v. OomnCrs Ramsey Co.. 11 Minn. R., 31. 

When such bonds are not properly authorized, they may be rendered valid in the hands of 
innocent holders by the acquiescence of the pe pie and their subsequent ratification by the 



DIV. II.] COUNTY COMMISSIONERS' COURTS. 63 

Sec. 47. No county treasurer shall countersign any county ™anks filled i.e- 

11. • nii ■» mi in • l fore counter- 

Order betorc the same is filled up, nor until he shall examine the signed. 

records of the court, and be satisfied that the order to be issued is 

warranted by the order of the county commissioners' court. 

Sec. 47a. It shall be lawful for the county commissioners' courts f~£ stat " p * 

of the several counties in this state, by an order to be entered upon Reward may be 

, . in . t .erv j ii offered for horse 

their records, to fix upon a sum, not exceeding titty dollars, as a thieves, 
reward to be paid lo any person or persons who shall hereafter 
pursue and apprehend, beyond the limits of the county where the 
offence shall have been committed, any person guilty of stealing any 
horse, mare or mule ; which reward shall be paid, on conviction of 
the thief, by the county in which the offence was committed : Pro- 
vided, That said reward shall not disqualify the person entitled 
thereto from being a witness. 

Sec. 4:7b. It shall be lawful for the county commissioners' courts ^Feb. 27! P '~ 
of the several counties in this state, by an order to be entered upon County commis- 

» J . i i i i ii sioners may offer 

their records, to fix upon a sum, not exceeding one hundred dollars, reward for fugi- 
as a reward to be paid to any person who shall hereafter pursue J}^ from JUS " 
and apprehend, beyond the limits of the county where the offence 
shall have been committed, any person guilty of any felony or other 
high crime, which reward shall be paid by the county where the 
offence was committed, on the conviction of the criminal : Provided, Proviso. 
nevertheless, That said reward shall not disqualify the person entitled 
thereto from being a witness. 

Sec. 47c. It shall T>e lawful for the county commissioners' courts n ' ± 

,. . , , , . ^ , . , . County commis- 

or the several counties in this state, to enter an order upon their sioners to enter 
records, allowing to any person or persons, who shall have aided or Jn^toperaoif 
assisted in the pursuit or arrest of any person or persons suspected for arresting fu- 
or accused of any felony, or other high crime, committed in their gltlve ' 
county, such reasonable sum as said county commissioners shall 
deem just, to defray the expenses of the person or persons in aid- 
ing or assisting in the pursuit or arrest of such offender or offenders, 
in making such pursuit or arrest; which sum so allowed, shall be 
paid out of the county treasury, in the same manner that other 
county expenses are paid. 

Sec. 47a 7 . The county courts for county business in counties Laws, 1863, p. 
without township organization and the board of supervisors of counties may 
counties under township organization, in such counties as may be ley y Bp ? c i al b { a ? 
owing debts which their current revenue, under existing laws, isness. 
not sufficient to pay, may, if deemed advisable, levy a special tax, 
not to exceed in any one year one per cent, upon the taxable 
property of any such county, to be assessed and collected in the 
same manner and at the same time and rate of compensation as 
other county taxes ; and when collected to be kept as a separate 
fund, in the county treasury, and to be expended under the direc- 
tion of the said county court or board of supervisors, as the case 
may be, in liquidation of such indebtedness. 

county in levying a tax and paying interest upon them. Clarke v. Board of Supervisors of 
Hancock County, 27 111. R., 305. But not so when the bonds were void from the beginning. 
Marshall County v. Cooke, 38 111. R., 44. 



64 



COUNTIES AND COUNTY AFFAIRS. 



[div. n. 



ACT OF 1849. 



Lairs 1849, p. 
(52, Feb. 12. 



Court estab- 
lished. 



Election of 
judges. 



Oath of oIHcc. 



Compensation. 



Times of holding 
courts. 



Powers, etc. 



Section 1. There shall be established in each of the counties of 
this state, now created and organized, or which may hereafter be 
created or organized, a court of record, to be styled " the county 
court of (the proper) county/' to be held by and consist of one 
judge, to be styled " the county judge of county. 

Sec. 2. The said county judges shall be elected on the Tuesday 
after the first Monday in November, in the year eighteen hundred 
and forty-nine, and on the Tuesday after the first Monday in No- 
vember quadrennially forever thereafter, by the qualified voters of 
the respective counties, and shall hold their ofiices for the term of 
four years, and until their successors are elected and qualified. 

Sec. 3. Each of the said county judges shall, before entering 
upon the duties of his office, take an oath " faithfully and impar- 
tially, promptly and without delay, to perform all the duties of his 
office, according to the best of his knowledge and abilities, accord- 
ing to law." Also an oath to support the constitution of the 
United States and this state, and also the oath prescribed in the 
twenty-sixth section of the thirteenth article of the constitution of 
this state; which oaths may be administered by any justice of the 
peace, or judge of any court of record, and shall be indorsed by 
the oificer administering such oaths, on the commission of said 
county judge, and. with the commission, recorded by the clerk of 
said court. (1) 

Sec. 4. The county judges respectively shall be entitled to a com- 
pensation for their services of two dollars and fifty cents per day, 
for every day employed by them in holding courts, to be paid quar- 
terly out of the county treasuries of the respective counties, on the 
certificate of the clerk of said court. 

Sec. 5. Said courts shall sit in the court house, or usual places 
of holding courts in the several counties of this state, for the trans- 
action of business, on the first Monday of every month, except the 
months of December. March, June, and September, and on the 
third Mondays of said months, and shall continue open from day to 
day until all the business before them shall be disposed of. Said 
courts shall each have a seal. The clerks of said courts shall be 
the keepers of the seals thereof, and shall issue all process legally 
emanating from said courts ; which process shall bear date when 
issued, be tested in the name of and signed by the clerk, and 



(1) The form of oath here prescribed is superceded by that prescribed in the new constitu- 
tion, Art. 5, \ 25, which is as foUows : 

Form of oath of office. 
I do solemnly swear (or affirm, as the case may be) that I -will support 
the constitution of the United States, and the constitution of the State of 
Illinois, and that I will faithfully discharge the duties of the office of 
county judge of county, according to the best of my ability. 

The constitution declares th»t " no other oath, declaration or test." than the above, " shall 
be required as a qualification"' for all civil officers, except members of the General Assembly. 
Const., Art. 5, § 25. 



DIV, II.] COUNTY COURTS. 65 

sealed with the seal of said court. And the clerk of said court 
shall perform all the ministerial duties heretofore performed by the 
probate courts, and shall be entitled to the fees and emoluments 
allowed bylaw: Provided, That granting letters testamentary, or 
of administration, except to collect, all letters of guardianship, and 
repealing the same, and allowing or disallowing claims against estates 
or persons, determining who are entitled to said letters requiring 
the settlement of estates, and directing the issuance of citations and 
attachments, shall be considered as general judicial powers under 
this act. 

Sec. 5a. The terms of the county courts of this state, for the Laws 1859, Feb. 
transaction of probate business, shall be held on the third Mondays 21 ' p * 95# 
of each month, instead of on the first Mondays of each month. 

Sec. 6. Whenever a vacancy shall happen in the office of county J. aca , ncy ' bow ' 
judge, by death, resignation, removal from the county, or any other 
cause, it shall be the duty of the clerk of said court in the county 
in which the vacancy may happen, to issue his orders to the judges 
of election in the different precincts in the proper county, requiring 
them, on a certain day therein named, not less than twenty days 
from the issuing of such order, to hold an election to fill such 
vacancy ; which orders shall be immediately delivered by said clerk 
to the sheriff of the proper county, and by him, within five days 
after the receipt thereof, delivered to the respective judges of elec- 
tion to whom directed, and the judges of election shall, in pursu- 
ance of said orders, hold said election. And the clerk of said court 
shall, at the time of making the orders to the judges of election, 
make out and deliver to the sheriff as many notices of said special 
election for judge as there are precincts in the county; and the 
sheriff shall, within the said five days, cause one of the said notices 
to be posted up in one of the most public places in each of said 
precincts. 

Sec. 7. There shall be elected at the same time and places of elect- cierk to be 
ing the judges of said court, in each of the counties of this state elected - 
now organized, or which may hereafter be organized, by the qualified 
voters thereof, a clerk of said county court, who shall hold his office 
for the term of four years, and until his successor shall be elected 
and qualified. 

Sec. 8. Every clerk so elected shall keep his office at the county Office to be kept 
seat, or place of holding court, for each county respectively. And at count y seat - 
each and every clerk, before entering upon the duties of his office, 
shall take an oath to support the constitution of the United States 0ath - 
and of this state, the oath prescribed in the twenty-sixth section of 
the thirteenth article of the constitution of this state, and also an 
oath "faithfully and impartially to discharge all the duties pertain- 
ing to said office of clerk of the county court, to the best of his 
abilities and knowledge, according to law;" which shall be indorsed 
on the commission of said clerk, and, with the commission spread 
on the records of said court. (Said oaths may be taken in open 
court, or before any judge or justice of the peace.) He shall also 



66 COUNTIES AND COUNTY AFFAIRS. [l>IV. II. 

To give bond, enter into bond, with good and sufficient securities, to be approved 
by said court, in the sum of three thousand dollars, payable to the 
people of the State of Illinois, for the use of any person injured— 
or the county, if injured, conditioned for the faithful discharge oi 
the duties of said office of clerk of the county court, and for the 
delivering up to his successor in office all the books, records, papers 
and proceedings of said court, whole, safe and undefaced, as well 
as all property of every kind belonging to said office, when super- 
ceded in said office ; which bond, when approved by the courts 
shall be spread on the records thereof, and afterwards transmitted 
to the secretary of state and filed in his office. 

Vacancy, how Sec. 9. When a vacancy shall happen in the office of county 

filled. clerk, it shall be filled by election, in the same manner as a vacancy 

in the office of judge. And the judge shall issue the orders for the 
election, and shall make out the notices for the same, and receive 
the . returns of the election in the same manner that the clerk is 
required to do in the case of a vacancy in the office of county judge. 
And the judge shall aid in comparing the returns of a special elec- 
tion for clerk, and make returns to the office of secretary of state, 
for the purpose of procuring the commission of the clerk so elected, 
in the same manner that the clerk is required to do in case of elec- 
tions of other officers : Provided, That if a clerk pro tern, shall be 
appointed and qualified, within five days after any such vacancy 
shall occur, such clerk pro tern, shall perform the duties in this 
section required of the judge. 

cierk pro tem. S EC . 10. When a vacancy shall happen in the office of clerk of 
the county court, from any cause whatever, the county judge shall 
appoint a clerk pro tem., to continue in office till a clerk be elected 
and qualified. And the clerk so appointed pro tem. shall take the 
same oaths, and execute bonds with like conditions, with security 
and penalty in the discretion of the judge. And the clerk pro tem. 
shall have all the powers, perform all the duties, and be entitled 
to all the fees and emoluments, for the time he may act as such, 
that the regularly elected clerk of said court would possess, be 
bound to perform, or be entitled to. 

Ti en t U fdut n& " ^ EC# **' Every c l er k who shall refuse or neglect, after going out 
of office, to deliver to his successor in office, all books, records, 
papers, money, property, and everything appertaining to said office, 
shall be subject to indictment, and, on conviction, to fine and 
imprisonment, in the discretion of the court before which he may 
be tried : Provided, The fine shall not exceed one thousand dollars, 
and the imprisonment one year. 

Circuit clerk to Sec. 12. The clerk of the circuit court shall be recorder of deeds, 
and shall perform all other duties now required by [of] the county 
recorder; and if any recorder now in office should die, resign, or 
otherwise vacate his office before this act takes effect, in such case 
the clerk of the circuit court shall immediately take the office so 
vacated, and be entitled to receive such fees as are now, or may be, 
from time to time, allowed by law. 



may be appoint- 
ed. 



be recorder. 



PIV. II. I COUNTY COURTS. 



nn»- 
court. 



Sec. 13. The county court shall be and is hereby vested with all Jjj^jyjjj, 
the powers and jurisdiction of the probate court, as now established 
by law, and appeals may be taken from and writs of certiorari pros- 
ecuted upon its judgments rendered under the powers conferred in 
this act iu the manner prescribed by law, in case of similar judg- 
ments rendered by the probate court. The county court shall have 
concurrent jurisdiction with the circuit court in hearing and deter- 
mining all applications for the sale of real estate of deceased per- 
sons, for the payment of debts for said decedents, and may make 
all orders and render all judgments on such applications that the 
circuit court might or could make or render in similar cases. And 
the orders and judgments of said court shall have the same force, 
power and effect as the orders and judgments of the circuit court 
in like cases. And final process may issue as from the circuit 
court. 

Sec. 1-4. The county judge shall be a conservator of the peace, 
and shall have the same civil and criminal jurisdiction as the justices 
of the peace in this state; and shall have the same power and 
authority to preserve order in the court, and punish contempts 
offered the courts while in session that the circuit court now 
possesses. 

Sec. 14a. The 14th section of the act to which this is an amend- Laws 1849, p. 
ment, [shall] be so construed as to confer on the county judge all 17 ' KoT - 3 * 
the power and jurisdiction, both civil and criminal, which the jus- jSdXm'as 38 
tices of the peace in this state possess, and that the said judge, justice of peace, 
while exercising such powers and jurisdiction, shall act in the capa- 
city of justice of the peace, and not as county judge. And said 
county judge, while acting as justice of the peace, shall be entitled 
to the same fees as are now allowed by law to justices of the peace 
in this state, and shall, before entering on the duties of his office, 
give bond as is now required by law of other justices of the peace. 

Sec. 15. The said judge, with two justices of the peace desig-Tosit as county 
nated and provided for, shall, in all cases whatever, sit as a county court * 
court; have, exercise and possess all the power, jurisdiction, and 
authority heretofore conferred by law on the county commissioners' 
courts of this state ; and shall sit for the transaction of county busi- 
ness on the first Mondays of December, March, June and Septem- 
ber, in every year, and shall continue open until the business before 
them is disposed of; and called or special terms for the transaction 
of county business may be held, as now provided by law for special 
terms of the county commissioners' courts. The sittings of said 
court shall be in the court house, or usual places of holding courts 
in the respective counties. 

Sec. 16. On the Tuesday after the first Monday in November, Election for 
in the year eighteen hundred and forty-nine, and on the Tuesday count y officers, 
after the first Monday in November quadrennially forever there- 
after, there shall be elected in each of the several counties of this Amended. 
state now organized, or that niay hereafter from time to time be 1 ^^^ 1872 ' 
organized, aud in the districts now established in pursuance of the 

5 



68 



COUNTIES AND COUNTY AFFAIRS. 



[DIV. II. 



Additional jt 
tices to be 
elected 



How commis- 
sioned. 



Vacancies, how 
filled. 



Additional oath. 



Duty of sheriff. 



laws of this state, or that may hereafter be established, and by the 
qualified electors thereof, the number of justices of the peace and 
constables to which such counties are now entitled by law, or to 
which they may hereafter from time to time be entitled; and said 
justices of the peace and constables so to be elected, shall exercise 
the powers and jurisdiction, and perform the duties, and be under 
the liabilities, in all respects whatever, of the justices of the peace 
and constables now in office, and be entitled to the same fees and 
emoluments, or such as may be provided by law. 

Sec. 17. There shall be elected at the same time3 and places, in 
each of the said several counties, by the qualified electors thereof, 
and each county is hereby created a district for that purpose, two 
additional justices of the peace, whose jurisdiction shall be coex- 
tensive with the counties, and who, together with the other jus- 
tices of the peace and constables provided for in the next preced- 
ing section of this act, shall hold their offices for the term of four 
years, and until their successors are elected and qualified, shall, 
in like manner as the other justices give bond, exercise the same 
jurisdiction and powers, be subject to the same liabilities, and 
perform the same duties ; and shall, moreover, sit with the county 
judge as members of the court, for the transaction of all county 
business, and none other; and while sitting as members of the 
court, shall have an equal vote with the county judge on all ques- 
tions and matters legally and properly before said court; shall 
each receive the same per diem compensation while holding courts. 
Any two of the three shall constitute a quorum to do business. 
The county judge shall be the presiding judge of the county court. 

Sec. 18. The county judge, clerk of the county court, the county 
and district justices of the peace, in this act provided for, shall be 
commissioned by the governor; and the constables shall receive 
from the clerk, to whom election returns are made, certificates of 
election. 

Sec. 19. Vacancies in the office of justice of the peace and con- 
stable shall be filled by special election, in the manner pointed out 
in the sixth section of this act, for filling a vacancy in the office of 
county judge : Provided, That in filling vacancies in the office of 
constable and district justices of the peace, the order for and notice 
of election shall be applicable to the proper district only. 

Sec. 20. In addition to oaths to support the constitution of the 
United States and of this state, and an oath for the faithful and 
prompt discharge of the duties of their respective offices, the said 
justices of the peace and constablo shall each take the oath pre- 
scribed in the twenty-sixth section of the thirteenth article of the 
constitution of this state. (1) 

Sec. 21. The sheriff in each county shall, by himself or deputy, 
attend the sittings of the county court, preserve order in the same, 
and execute the legal commands thereof. 



(1) The form of o*tli above required, is superceded by the new constitution, Art. 
See ante, note tu Sec. 3, p. 62. 



DIV. II.] COUNTY COURTS. 69 

« 

Sec. 22. In all suits and proceedings whatever, originating in Proceedings, how 
the county court, the process and service thereof shall be the same 
as if the proceeding originated in the circuit court, as near as 
circumstances will permit. 

Sec. 23. The clerk of the county court shall provide, for the Books to be pro- 
use of his office, two sets of books for the purpose of entering and T1 
preserving the proceedings of said court, while acting with the 
justices of the peace for the transaction of the same business, sep- 
arate from those containing the proceedings and business of said 
court while acting judicially. And said clerk shall keep the papers 
and business of said court in like manner separate. 

Sec. 24. In all cases where concurrent jurisdiction with the Rules, 
circuit court is given to the county court by this act, the rules of 
proceeding and practice shall be the same, and in all cases in which 
the probate court has heretofore exercised jurisdiction, the rules of 
proceeding and practice in the county court shall be the same as 
that held in the probate court. And in all cases in which the 
county commissioners , courts have heretofore exercised jurisdiction, 
the rules of proceeding and practice in the county court shall be 
the same as in the. county commissioners' courts. 

Sec. 25. On the first Monday of December, eighteen hundred When to enter on 
and forty-nine, the county judges, clerks of the county court, justices 
of the peace and constables, provided for in this act, shall enter Amended, 
upon the duties of their respective offices, and on said day the term Laws 1872 
of office of the county commissioners, clerks of the county com- 
missioners' court, probate justice of the peace, justices of the 
peace and constables, then in office, shall expire : Provided, That Proviso, 
the justices of the peace, constables, county commissioners, clerks 
of the county commissioners' courts and probate justices of the 
peace, who shall be in office on the first Monday in August next, 
shall continue in office until the first Monday in December next, 
and until the justices of the peace, county judges and clerk of the 
county court, provided for in this act, shall respectively be elected 
and qualified: And provided, further, That a failure of any of the Further proviso - 
officers last mentioned to execute bond and take the oath of office 
within twenty days after notice to any such officer of his election, 
at any general or special election, shall create a vacancy in office, 
and be filled by election or appointment as hereinbefore provided. 

Sec. 25a. All and every person or persons, and any body cor- JJj^ejf 5 if F * 
porate, who may hereafter consider himself, herself or themselves 
aggrieved by any decision or order of any of the county courts of Appeal allowed 
this state, while sitting and exercising the powers and performing court. County 
the duties heretofore conferred by law on the county commissioners' 
court of this state, shall be allowed to take an appeal from said 
decision or order to the circuit courts of their respective counties, 
by filing bond with the clerk of said court, to be approved by him Appeal bond, 
within twenty days from and after the rendition of said decision or 
order; said bond to be made payable to the judge of the county 
court, or his successor in office, for the use of the people of the 



70 COUNTIES AND COUNTY AFFAIRS. [DIV. II. 



Id. 



county in which such suit is pending, the conditions of which shall 
be the same as bonds in appeals from justices of the peace. 
cTerk to certify Sec. 255. It shall be the duty of the several clerks of the 
copy of record. count y cour t s of this state, within five days from and after the filing 
of the bonds as aforesaid, to make out a certified copy of the decision 
or order from which the appeal is taken, and transmit the same, 
together with all the papers in his possession appertaining or in any 
wise belonging to said cause, to the clerk of the circuit court, who 
shall file the same in his office, and docket the suit as in other cases 
of appeals. 

Clerks <rant let ^ EC# *^ c ' ^ e c ^ er ^ s °^ tne severa i county courts of this state 
ters testament- are hereby authorized and empowered to grant letters testamentary 
ary - or of administration, and citations in vacation, subject to the 

approval or disapproval of the court, at its next regular term, any 
thing in the law to which this is an amendment to the contrary not- 
withstanding. 

RAILROAD AND IMPROVEMENT BONDS— ACT 1865. 
Laws 1865, p. 
44, Feb. 18. 

Bonds may be Sec. 1. In all cases where counties or cites have heretofore, under 
canceled, etc. an y j aw f ^jg s t atCj i ssuec i bonds or securities for money on account 
of any subscription to the capital stock of any railroad company, or 
on account of, or in aid of, any public improvement, and the same 
remains outstanding, or any debt arising thereout remains unpaid, 
the board of supervisors or county court of such county, and the 
city council or municipal authority of such city, as the case may be, 
having issued such bonds and securities, may, upon due surrender 
of any such bonds or securities, or cancellation of such debt, issue 
in place thereof, to the holder or owner, new bonds, in such form, 
for such amount, upon such time, and drawing such interest, as 
Proviso. may be agreed upon with the holder or owner : Provided, Such 

new bonds shall not be for a greater sum than the principal and 
accrued or earned interest unpaid of the bonds or debts in place of 
which they shall be given, nor bear a greater rate of interest 
Bonds to bear six than six per cent, per annum, payable on the first day of July of 
i>€£ cen . in er- g^^ vear . an( j such bonds shall show on their face that they 
are issued under this act, and, if so agreed, may provide for pay- 
ment of five per cent of the principal thereof, annually, until fully 
paid. 
Bonds surren- Sec. 2. Upon the surrender of any such bond or security under 

dorsed!° bb in * tn * s act > tne same sna ^ ^ e indorsed canceled, and the same shall 
from time to time be destroyed, under the direction of the authority 
issuing them.* Upon the issuing of any such new bond, the county 
New bonds to be clerk, or city clerk, as the case may be, shall make registration 
thereof in a book to be kept for that purpose in his office, showing 
the date, amount, number, maturity and rate of interest of such 
new bond, and the number or date of the bond or security for which 
EtweVwith auv tne same * s given. On presentation of any such new bond at the 
itor. office of the auditor of public accounts for registration, he shall 



DIY. II.] RAILROAD AND IMPROVEMENT BONDS. 71 

cause the same to be registered in his office, in a book to be kept 

for that purpose; such registration shall show the date, amount, 

number, maturity and rate of interest of such bond, under what 

act, and by what county or city issued, and for such registration 

the auditor shall be entitled to a fee of one dollar, to be paid by Auditor's foe. 

the party desiring the same; and the auditor shall, under his 

seal of office, certify upon such bond the fact of such regis- Certificate of 

tration, for which the auditor shall be entitled to a fee of fifty registraticu. 

cents. 

Sec. 3. In all cases when any county or city shall issue bonds cierk of county 
under this act, it shall be the duty of the county clerk of such ^tSamount* 
county, or of the officer to whom or to whose office the assessment of assessment, 
rolls for state taxation, whether county or city, are or shall be 
returnable, within five days after such return, to make out and 
transmit to the auditor of state, to be filed in his office, a certificate 
stating the total value of all property, real and personal, within 
such county or city, exhibited by such assessment. 

Sec. 4. When the bonds of any county or city, to the amount of 
twenty thousand dollars, shall be so registered, the auditor shall 
annually ascertain the amount of interest for the current year, due Annual interest 
and accrued, and to accrue against any county or city. On all J^ a udito£ ute 
such bonds, so registered in his office, on the first day of January, 
then next preceding, to which amount, where such bonds or securi- 
ties provide for payment of five per cent, of such principal thereof, 
annually, he shall add five per cent, of the principal thereof, and when taxes may 
shall, upon the basis of the certificate of valuation of property so dfto^to secure" 
to be transmitted to him, or, in case no such certificate shall be filed bonds - 
in his office, then upon the basis of the total state revenue of such 
county or city for the year next preceding, or of the assessment 
appertaining thereto of such year estimate, and determine the 
rate per centum on the valuation of property within such county 
or city, requisite to meet and satisfy the same interest, or interest 
and principal, as the case may be, together with ordinary costs to 
the state of collection and disbursement of the same, to be estimated 
by the auditor and treasurer; and shall make and transmit to the 
county clerk of such county, and to the officer or authority whose 
duty it is, or shall be, to prepare the estimates and books for the col- 
lection of state taxes in such county or city, a certificate stating such 
estimated requisite per centum for such purposes, to be filed in his 
office ; and the same per centum shall thereupon be deemed added 
to and a part of the per centum which is or may be levied, or pro- 
vided by law, for purposes of state revenue, and shall be so treated 
by such clerk, officer or authority, in making such estimates and 
books for the collection of taxes, and the same tax shall be collected Such tax to bo 
with the state revenue, and all laws relating to the state revenue state C reveQue. 
shall apply thereto, except as herein otherwise provided ; and such 
per centum shall be deducted from the county or city levy for the 
current or ensuing year. 



72 COUNTIES AXD COUNTY AFFAIRS. [DIY. II. 

state not liable. g EC# 5. The state shall be deemed the custodian only of the tax 
so collected, and shall not be deemed in any manner liable on 
account of any such bonds, but the tax and the funds so collected 
Tax pledged to shall be deemed pledged and appropriated to the payment of the 
bonds^egistered. interest and principal of the registered bonds, to satisfy which the 
same is herein provided to be collected, as aforesaid, and such new 
bonds or securities to be issued under authority hereof, shall be 
deemed secured and provided for in virtue and faith hereof, until 
Tax applied an- f u u v satisfied. The state shall annually collect and applv the said 
tered bards. fund to the satisfaction of the annual interest, or annual interest and 
five per centum of the principal, as the case may be, of such regis- 
tered bends of any such county or city, to the extent the same is 
herein contemplated to be derived from such tax in the same county 
or city, in the same manner as interest on the bonds of the state are 
or may be collected and paid, but in like moneys as shall be receiv- 
able in payment payment of state taxes j and the moneys so paid 
Payments to be upon the principal of any such bonds shall be indorsed thereon, and 
bonds!* 1 ° n due receipts therefor shall be taken and filed in the office of the 
state auditor or treasurer, and interest coupons or bonds so paid 
Conpons or shall be returned to one of said officers, and shall be canceled and 
troyed. destroyed in the same manner as those appertaining to the state 

debt. 
Cost of collection Sec. 6. The state may out of said fund first retain or satisfy the 
m<?ntre£ned. ordinary costs of the state, of the collection and disbursement 
thereof, and in case of non-presentment of any such bond or 
interest coupon of any county or city, for payment at the times and 
places when and where the interest on the state debt is or may be 
paid, then, on the beginning of the next year, the moneys, by reason 
thereof undisbursed, together with any surplus for any cause remain- 
ing, shall be carried to the fund of such county or city of the cur- 
rent or ensuing year, and be considered by the auditor in making 
his next estimate for taxation therein, for such year, under this 
Laws relating to act, and shall be applied accordingly. All laws relating to the 
terwt e onBtete payment of interest on the state debt, or the cancellation of evi- 
debt. dences thereof, not inconsistent with this act, shall apply to the 

receipt, custody and disbursement of the taxes and fund provided 
by this act. 
when bonds ma- Sec. 7. Upon maturity of any such registered bonds or securi- 
Lteredas suchf "ties, in case of non-payment thereof, by the county or city issuing 
the same, the holders thereof may cause the same to be registered 
in the office of the auditor as matured and unsatisfied bonds, and 
thereupon, for the purpose of providing for the payment of the 
principal of the same matured bonds, at the rate of five per cent, of 
such principal annually, and of interest thereon in arrear, and for the 
current or ensuing year to accrue, together with costs to the state 
and collection and disbursement as aforesaid, the same proceedings 
in all respects shall be had as is hereinbefore provided for payment 
of interest on such bonds, by collection in such county or city, and 
disbursement in the manner and upon the basis hereinbefore pro- 



DIY. II.] RAILROAD INDEBTEDNESS. 73 



vided, of an annual tax sufficient for the purposes in this section oon- Ann " a !* a ? t0 . be 

ii 11 iiii ii i i ^' ^ n • i levied till bonds 

templatedj and the same shall be collected and applied, as aforesaid, are paid, 
to such purpose, from year to year, until full satisfaction thereof, 
when said bonds shall be canceled and destroyed as is hereinbefore 
provided. 

Sec. 8. Upon the payment of any such registered bond or Auditor to make 
security by the county or city issuing the same, and presentation bonYs are^aid. 
thereof to the auditor, he shall cause due entry thereof to be made 
in his office. 

Sec. 9. If it shall be deemed advisable, any such, county or city New bonds may 
may issue such new bonds for the purpose alone of satisfying or be 1S8ued - 
taking up their respective bonds or debts. 

Sec. 10. There shall be allowed and paid to county and town commission to 
collectors, for collecting and paying over the taxes levied by virtue collectors! 
of this act, the following rates of commissions, to be ascertained and 
computed in the same manner that commissions for collecting and 
paying over state taxes are ascertained and computed and paid from 
the taxes so collected, viz.: To town collectors, at the rate of three Totown coiiee- 
per cent, on all sums collected ; to county collectors, at the rate of To county col- 
two per cent, on all sums received by them from town collectors for lectors - 
the first ten thousand dollars so received, and one per cent, on the 
amount received over ten thousand dollars, which shall be in full 
for receiving the same and paying it into the state treasury, and for 
adjusting the accounts of and settling with the town collectors for 
their collection of said tax, and the commission of three per cent, 
on all sums by themselves collected and paid over to the state treas- 
urer, and where such tax is levied, the collectors' bonds shall be Collector's bond 

7 - .. _ p ' to be increased, 

increased nity per centum. 

RAILROAD INDEBTEDNESS— ACT 1869. 

Laws, 1869, p. 
316, April 6. 

Sec. 1. Whenever any county, township, incorporated city, or Debts of courties, 
town, shall have created a debt which still remains unpaid, or shall and towns' 
create a debt under the provisions of any law of this state, to aid 
in the construction of any railway or railways that shall be com- 
pleted within ten years from and after the passage of this act, whose 
line shall run near to, into or through said county, township, city, 
or town, it shall be lawful for the state treasurer, and he is hereby Revenue placed 
required immediately, upon receiving the revenue for each year, to JJ a t"£J aB °u re rf 
place to the credit of such county, township, city, or town, so having 
incurred such indebtedness, in the state treasury, annually, for and 
during the term of ten years, all the state taxes collected and paid 
into the state treasury on the increased valuation of the taxable 
property of said county, township, city, or town, as shown by the^8. 8sment r ° H 
annual assessment roll of the year 1868, excepting the state school 
tax and the two mill tax provided for by the constitution of this 
state for the payment of the state debt. And whenever any county, S^topa'yinto 
township, city, or town, shall have created a debt, as aforesaid, it state treasury 
shall also be lawful for the collector of taxes, and he is hereby "endears!* 8 ° r 



74 COUNTIES AND COUNTY AFFAIRS. [DIV. II. 

required, annually, for and during the term of ten years, to pay 
into the state treasury all the taxes collected for any purpose what- 
ever, on the assessment of the railroad or railroads, for whose aid 
the said debt was incurred, including the road-bed and superstruc- 
ture, and all fixtures and appurtenances thereof, the locomotives. 
cars, machinery, and machine shops, depots, and all other property, 
real and personal of said railway company within such county, town- 
ship, city, or town ; and immediately upon receiving the same the 
state treasurer shall place to the credit of such county, township, 
city, or town, in the state treasury, the whole amount so received, 
except the state school tax and the two mill tax provided by the 
constitution of this state for the payment of the state debt; and it 
shall be the duty of said collector of taxes to furnish the state 
auditor a separate and detailed account of the amount of taxes col- 

_. , , lected from said railway or railways, at the time of his annual settle- 

state treasurer . < _„ ait • 

give separate nient with the state auditor. And the state treasurer shall give to 
receipts. ga j ( j co ll ec to r separate receipts for the respective amounts paid into 

the state treasury to the credit of said county, and said receipts 
shall be taken and received by the county court or other legal 
authorities, as vouchers for the amount collected on account of the 
county and local assessments on said railroad property in the annual 
settlement with such collector, and the several amounts of money in 
this section provided and ordered to be placed to the credit of such 
county, township, city, or town, shall be applied by the state treas- 
urer to the payment of the bonded railroad debt of such county, 
township, city, or town as hereinafter provided. 
County clerks S E c. 2. And the county clerk, or other proper officer, upon the 
bonds' eg18 ry ° issuing of the bonds in payment of said railroad debt, shall make a 
registration thereof in a book to be kept for that purpose in his 
office, showing the date, amount, number, maturity and rate of 
interest of such bonds, and upon the subscription or donation to 
what railroad the same was given. And the said bonds and bonds 
heretofore issued and still unpaid, in order to receive the benefits of 
this act, shall be registered by the holder thereof, at the office of the 
auditor of public accounts, who shall cause the same to be registered 
re^atraSonf m a. book kept for that purpose. Such registration shall show the 
date, amount, number, maturity and rate of interest of such bond, 
under what act, and by what county, township, city, or town issued ; 
and the auditor shall, under his seal of office, certify upon such bond 
the fact of such registration, for which registration and certificate 
the auditor shall be entitled to a fee of one dollar from the holder 
of each bond. 
County clerk to Sec. 3. In all cases when any county, township, incorporated 
city, or town, shall issue bonds under the provisions of law, and to 
be entitled to the benefits of this act, it shall be the duty of the 
county clerk of such county, or of the officer to whom or to whose 
office the assessment rolls for state taxation are or shall be returnable, 
within five days after such returns, to make and transmit to the state 
auditor, to be filed in his office, a certificate stating the total value 



make returns of 
assessment, 



DIV. II. J RAILROAD INDEBTEDNESS. 75 



ol' all property, real and personal, within such county, township, 
city, or town, as exhibited by such assessment. 

JSec. -1. "When the bonds of any county, township, city, or town state audita 
shall be so registered, the state auditor shall annually ascertain the JJciltafntfe ' 
amount of interest for the current year due and accrued and to amount of intor- 
accrue upon such bonds, and from the amount so ascertained he e " 
shall deduct the amount in the state treasury placed to the credit 
of such county, township, city, or town, as herein provided and 
directed, and from the basis of the certificate of valuation of prop- 
erty heretofore provided to be transmitted to him, or in case no 
such certificate shall be filed in his office, then upon the basis of 
the total assessment of such county, township, city, or town, for the 
year next preceding, he shall estimate and determine the rate per ghall determine 
centum on the valuation of property within such county, township, rate per cent, 
city, or town, requisite to meet and satisfy the amount of interest 
unprovided for, together with the ordinary cost to the state of col- 
lection and disbursement of the same, to be estimated by the 
auditor and treasurer, and shall make and transmit to the county Transmit 8amo 
elerk of such county, or to the officer or authority whose duty it is or to county clerk 
shall be to prepare the estimates and books for the collection of ° 
state taxes in such county, township, city, or town, a certificate 
stating such estimated requisite per centum for such purpose, to 
be filed in his office, and the same per centum shall thereupon be 
deemed added to and a part of the per centum which is or may Amotmt to be 
be levied or provided by law for purposes of state revenue, and added. 
shall be so treated by such clerk, officer or authority, in making 
such estimates and books for the collection of taxes, and the said 
tax shall be collected with the state revenue, and all laws relating 
to the state revenue shall apply thereto, except as herein otherwise 
provided. 

Sec. 5. The state shall be deemed the custodian only of the sev- state 8ha]1 be 
eral taxes so collected and credited to such county, township, city, custodian of tax's 
or town, and shall not be deemed in any manner liable on account of 
any such bonds, but the tax and funds so collected shall be deemed „ , . , 

i-i-i-i • -i i r> i Taxes pledged 

pledged and appropriated to the payment of the interest and prin- for payment ot 
cipal of the registered bonds herein provided for until fully satisfied. bond8. 
The state shall annually collect and apply all the said taxes and Taxes to be col . 
funds placed to the credit of such county, township, city, or town, le ? l ed and ap- 
for and during the term of eight years, to the payment of the p ie 
annual interest on sueh registered bonds of such county, township, 
city, or town, in the same manner as interest on the bonds of the 
state is or may be collected and paid, but in like moneys as shall be 
receivable in payment of state taxes ; and for and during the re- 
mainder- of the term of years during which said registered bonds 
shall remain unpaid ; the funds provided in section one of this act, 
accruing from taxes collected on the property of said railroad or 
railroads, and the surplus, if any, of the other funds in this act 
provided, remaining after the payment of the interest on the bonds, 
shall be applied to the payment of the principal of said registered 



creased assess- 
ment. 



76 COUNTIES AND COUNTY AFFAIRS. [dIY. II 

bonds, on presentation at the state treasury, or the treasurer shall 
purchase the same in open market at not more than par ; and 
upon such payment or purchase of the said bonds, the amount paid 
upon the principal of said bonds shall be indorsed thereon and 
receipts therefor shall be taken and filed in the office of the state 
treasurer ; and the interest coupons or bonds, when fully paid, shall 
be returned to the office of the state treasurer, and shall be canceled 
and destroyed in the same manner as those appertaining to the state 
debt. And the fund derived from the taxes collected on the in- 
Funds from in- creased assessment over the year 1868, and the tax levied to meet 
the interest on said registered bonds shall continue to be annually 
applied to the interest of said bonds. And the said taxes and funds 
required in this act to be placed to the credit of counties, town- 
ships, cities, and towns, shall be applied by the state treasurer to 
the payment of the registered railroad bonds of such county, town- 
ship, cities, or towns, equally and without discrimination, 
state may retain Sec. 6. The state may, out of such funds, first retain or satisfy 
the ordinary costs of the state of the collection and disbursement 
thereof; and in case of non-presentment of any such bonds or 
in case of non- interest coupons for payment at the time and place, when and 
presentment of w here the interest on the state debt is or may be paid, then, on the 
beginning of the next year, the money by reason thereof undis- 
bursed, together with any surplus for any cause remaining, shall be 
carried to the fund of such county, township, city, or town, of the 
current or ensuing year, and be considered by the auditor in making 
his next estimate for taxation therein for such year under this act, 
and shall be applied accordingly during the first eight years of the 
operation of this act. All laws relating to the payment of interest 
on the state debt, or the cancellation of evidences thereof, not incon- 
sistent with this act, shall apply to the receipt, custody and dis- 
bursement of the taxes and funds provided by this act. 
Railroad mnst be Sec. 7. And it shall not be lawful to register any bonds under 
benefits te can e be e the provisions of this act,, or to receive any of the benefits or advan- 
derived by this tages to be derived from this act, until after the railroad, in aid of 

set. 

the construction of which the debt was incurred, shall have been 
completed near to or in such county, township, city, or town, and 
cars shall have run thereon ) and none of the benefits, advantages 
or provisions of this act shall apply to any debt, unless the sub- 
scription or donation creating such debt was first submitted to an 
election of the legal voters of said county, township, city, or town, 
under the provisions of the laws of this state, and a majority of the 
legal voters living in said county, township, city, or town, were in 
favor of such aid, subscription or donation, and any county, town- 
ship, city, or town, shall have the right, upon making any subscrip- 
tion or donation to any railroad company, to prescribe the conditions 
upon which such bonds, subscriptions or donations shall be made, 
and such bonds, subscriptions or donations shall not be valid and 
binding until such conditions precedent shall have been complied 
with. And the presiding judge of the county court, or the super- 



DIV. II.] RAILROAD INDEBTEDNESS. 77 

visor of the township, or the chief executive officer of the city or Certificate of 
town that shall have issued bonds to any railway or railways, imme- performed, 
diatcly upon the the completion of the same near to, into or 
through such county, township, city, or town, as may have been 
agreed upon, and the running of the cars thereon, shall certify 
under oath that all the preliminary conditions of this act required 
to be done to authorize the registration of such bonds, and to entitle 
them to the benefits of this act, have been complied with, and shall 
transmit the same to the state auditor, with a statement of the date, 
amount, number, maturity and rate of interest of such bonds, and 
to what company and under what law issued; and thereupon the 
said bonds shall be subject to registration by the state auditor, as 
hereinbefore provided. 

Sec. 8. And each railway company in aid of which any bonds Have repreaenta- 
shall hereinafter be issued by any county, township, incorporated ^directors of* 
city, or town, to pay for any subscription to the capital stock of raiin>ads. # 
such company, or for any donation made to such company, shall 
give to such counties, townships, cities and towns, collectively, a 
representation in the board of directors of such company of one- 
fourth of the number of such board of directors, until after the said 
railway shall have been completed and the cars shall have run 
thereon, and until all the conditions of the subscriptions and dona- 
tions to such railway company by such counties, townships, cities 
and towns shall have been fully settled and complied with by said 
railway company ; and thereafter the said counties, townships, cities 
and towns shall be represented in said boards of directors only in 
the manner and proportion that other stockholders are represented, 
and the governor of the state is hereby authorized and empowered 
to appoint the directors herein provided to represent the interest of 
said counties, townships, cities, and towns, in the boards of direc- 
tors of such railways as shall receive bonds to be entitled to the 
benefits of this act. 

Sec. 9. And the state auditor, from the total value of all the state auditor to 
property in the state, after the same shall have been equalized in ofincreasedT^na 
accordance with the provisions of "An act to amend the revenue above 1868 * 
laws, and to establish a state board of equalization of assessments, 
approved March 8, 1867," shall deduct the amount of the said 
increased valuation of the taxable property above the valuation of 
the year 1868, in such counties, townships, incorporated cities and 
towns as may be entitled to the benefits of this act, and the taxes 
upon which are herein directed to be credited to counties, town- 
ships, cities and towns, and upon the amount remaining he shall 
cause to be collected such a per cent, as shall be sufficient to pay 
the appropriations and other demands upon the treasury due to the 
end of each fiscal year, and the same per cent, shall also be collected 
on the increased valuation above the valuation of the year 1868, 
and applied as herein provided. 

Sec 10. Upon the payment of any such registered bond or inter- Entry of pay. 
est coupons by the county, township, city, or town, issuing the same, ment of bond * 



78 



COUNTIES AND COUNTY AFFAIRS. 



[div. it. 



Collectors' bonds 
to be increased. 



and presentation thereof to the state auditor, he shall cause due 
entry thereof to be made in his office. 
When provisions S EC> n. And if the principal and interest of the bonds regis- 
cease. tered under the provisions of this act shall be fully paid and can- 

celed at any time before the expiration of the full term of ten 
years, during which the funds provided in section one of this act 
are to be applied to the credit of such county, township, city, or 
town, then the provisions of this act in respect thereto shall cease 
and determine, and no further money derived from said taxes shall 
be so applied. 

Sec. 12. The collectors' bonds in counties, townships, cities and 
towns where collections shall be made under the provisions of this 
act, shall be increased fifty per centum, and collectors in counties 
not under township organization, shall pay into the state treasury a 
sufficient amount of the taxes collected in such county to meet the 
interest to be annually paid on such registered bonds, on or before 
the 20th day of June in each year. And there shall be allowed and 
paid to county, township, city and town collectors, for collecting 
and paying over the taxes levied by virtue of this act, the following 
rates of commission, to be ascertained and computed in the same 
manner that conrniissioners for collecting and paying over the state 
taxes are ascertained and computed and paid from the taxes so col- 
lected, to-wit : To township, city or town collectors, at the rate of 
two per centum on all sums collected, and to county collectors at 
the rate of one per cent, on all sums received by them from town- 
ship, city and town collectors, which shall be in full for receiving 
the same and paying it into the state treasury; and for adjusting 
the accounts of and settling with the township, city and towii col- 
lectors for their collections of said tax, and a commission of three 
per cent, on all sums by themselves collected and paid over into the 
state treasury. 



Collectors Fees. 



COUNTY NORMAL SCHOOLS. 



/,aws, 1S69, p. 
IbS^M&r. 15. 

County Normal j 
School, how es- 
tablished. 

Taxes levied for 
support of. 



Proviso as to 
counties not un- 
der township or- 
ganization. 

Submitted to 
vote of people. 



Sec. 1. In each county adopting township organization, the board 
of supervisors, and in other counties, the county court, may estab- 
lish a county normal school for the purpose of fitting teachers for 
the common schools. That they shall be authorized to levy taxes 
and appropriate moneys for the support of said schools, and also for 
the purchase of necessary grounds and buildings, furniture, appara- 
tus, etc., and to hold and acquire, by gift or purchase, either from 
individuals or corporations, any real estate, buildings or other pro- 
perty, for the use of said schools, said taxes to be levied and collected 
as all other county taxes : Provided, That in counties not under 
township organization, county courts shall not be authorized to 
proceed under the provisions of this act until the subject shall have 
been submitted to a vote of the people, at a general election, and it 
shall appear that a majority of all the votes cast on the subject, at 
said election, shall be in favor of the establishment of a county 



: 



DIV. II. J WORKHOUSES. 



normal school. The ballots used in voting on this subject may 
read " for a county normal school/' or " against a county normal 
school/'. 

Sec. 2. The management and control of said schools shall be in Managed by 
a county board of education, consisting of not less than five nor education, 
more than eight persons, of which board the chairman of the board 
of supervisors or the judge of the county court, as the case may be, 
and the county superintendent of schools, shall be ex-qfficio members. 
The other members shall be chosen by the board of supervisors or 
county court, and shall hold their offices for the term of three years. 
But at the first election one-third shall be chosen for one year, one- 
third for two years, and one-third for three years, and thereafter 
one-third shall be elected annually. Said elections shall be held at 
the annual meeting of the board of supervisors in September, or at 
the September term of the county court, as the case may be. 

Sec. 3. Said board of education shall have power to hire teachers, Powers of board^ 
aud to make and enforce all needful rules and regulations for the report, 
management of said schools. A majority of said board shall con- 
stitute a quorum for the transaction of business, and a meeting of 
said board may be called at any time by the president or secretary, 
or by any three of the members thereof. Said board shall proceed 
to organize within twenty days after their appointment, by elect- 
ing a president, who shall hold his office for one year, and until 
his successor shall be appointed. The county superintendent 
shall be ex-oj/icio secretary of the board. Said board shall make 
to the board of supervisors, at their annual meeting in September, 
or to the county court at the September term, as the case may be, 
a full report of the condition and expenditures of said county nor- 
mal school, together with an estimate of the expenses of said school 
for the ensuing year. 

Sec. 4. Two or more counties may unite in establishing a normal uuite" 68 may 
school, in which case the per centum of tax levied for the support 
of said school shall be the same in each county. 

Sec. 5. In all counties that have already established normal Schools hereto- 
schools, the action of the board of supervisors in so doing, and all Jegailzed bll6he(i 
appropriations made by them for their support, are hereby legalized ; 
and said boards of supervisors are hereby authorized and empowered 
to make further appropriations for the support of such schools 
already established, until such schools shall have been established 
under the previous sections of this act. 

Sec. 6. No member of the aforesaid county board of education No compensation 
shall be entitled to compensation for services rendered as a member allowed, 
of such board. 

WORKHOUSES. 

Sec. 1. Hereafter any prisoner convicted in the circuit court Laws i860, p. 
of any county in this state, or in any city court having criminal 103 ' April ly - 
jurisdiction, of any crime or misdemeanor, the punishment of Court may aen- 

i • i • . • ,1 • «i i_ • • - tence convicts to 

winch is imprisonment in the county jail, such prisoner or convict laDor< 



80 COUNTIES AND COUNTY AFFAIRS. [dIY. EL 

may be sentenced by the court in which said conviction is had. to 
labor for the benefit of the county during the term of such impris- 
onment in the county or other workhouse provided for that purpose 
by the county authorities. 
be er©ctod e b maT ^ EC ' ^' e count y courts or tne board of supervisors in counties, 
county. adopting township organization, may erect or cause to be erected 

a workhouse in their respective counties, or they may, direct that 
workhouse owned or constructed by any city, shall be used in 
place or lieu of any county workhouse, and when they shall so 
order or direct, then such convict shall be sentenced to such city 
workhouse. 



REMOVAL OF COUNTY SEATS. 



p'S^oo. VppI Sec. 1. That all elections for the removal of county seats 
shall be held on the second Tuesday after the first Monday of 
November, at the usual places of holding elections ; and the 
Election for same P ersons wno Ayere judges and clerks at the next preceding 
removal of general election, in their respective election precincts, shall 
where y a S nd~ act as judges and clerks of such county seat elections; and 
when held. a rj Tacanc i es \ n the respective boards of election shall be filled 

in the same manner as at general elections. 
Public notice " Sec. 2. Public notice shall be given of the intention to 
removals be circulate a petition praying for an election for the removal of 
given. t k e Qonnty seat of any county from its then present location 

to some other point within said county, and in said petition 
designated, at least ten days before the same is circulated, 
by publication in some newspaper printed in said county, and 
by posting three printed notices in three public places 
at the county seat, one of which shall be placed on the court 
house door, and a like number at the place to which the county 
seat is proposed to be removed, in which notices the intent of 
such petition shall be set forth; and all signers to such petition 
procured before such notice is given, or procured six months 
before the first day of the term of court at which the application 
is to be made, shall be void, and stricken from such petition : 
and whenever such petition or petitions," addressed to the 
county clerk of such county, and stating the time when such 
election shall be held, shall be signed by a number of legal 
voters of said county, at general elections, who are not resi- 
dents of the city, or township (if the county scat is not in 
a city) in which the county seat is located, equal in number 
to two-fifths of all the votes cast in said county at the last 
preceding presidential election therein, and shall be filed in 



PIV. II.] REMOVAL OF COUNTY SEATS. 81 

the office of the clerk of the county court of said county, not 
less than forty nor more than eighty days before the first day 
of the next September term of the-county court in such county, 
such petition shall be deemed a proposal to remove the county 
scat of such county, and the point designated in such petition 
shall be deemed and taken as fixed by said petition, in pursu- 
ance of law, whenever the court shall order an election to such 
point as hereinafter provided, as the point to which it is pro- 
posed to remove the county seat of such county. There shall 
also be filed in the office of said clerk, with said petitions, an 
affidavit of three legal voters of said county stating whether or ^ e d e a ^ al of 
not the point named in said petition or petitions, to which it ^^fof ^ac?" 
is proposed to remove the county seat of such county, is nearer from centre of 
to or further from the centre of such county than the county med with 13 
seat. "Which affidavit may be traversed by the affidavit f county clerk, 
any other three legal voters of said county within ten days 
from the filing thereof; and if so traversed the county court 
shall, at the next September term of said court, after hearing 
evidence in the case, decide whether or not the point to which 
it is proposed to remove the county seat, is nearer to or further 
from the centre of said county than the county seat. 

Sec. 3. Each petitioner signing such petition shall write or How petition 
cause to be written opposite to his name on said petition, the mustbesi s ned - 
name of the city and ward in which he then resides, if he 
resides -in a city, or if he does not reside in a city, then the 
name of the precinct or township in which he resides at the 
time of signing such petition ; and no person shall sign such 
petition unless he shall be, at the time, a legal voter in said 
county at general elections. 

Sec. 4. Said petition or petitions shall, after the same are Petition shall 
filed in the office of the clerk of the county court, be open to J-® for e ins°pec- b " 
the inspection of any and all citizens of the county, but shall tion - 
not be removed therefrom. 

Sec. 5. Any citizen and legal voter at general elections in night to sign 
said county, may contest the right of any person whose name SSed. e C ° n " 
is subscribed to said petition, to sign such petition under this 
act, and shall also have the right to contest said petition as to 
any names subscribed thereto that he shall have good reason 
to believe and does believe, are fictitious, and no others : Pro- Proviso as to 
vided, he shall, ten days before the first day of the next Sep- which the right 
tember term of the county court, file in the office of the clerk Sd be c ° n " 
of the county court of such county, a list of the names of such 
persons whose right to sign such petition he is desirous of con- 
testing, together with his affidavit, indorsed thereon, that he 
has good reason to believe, and does verily believe, that such 



< Q 2 COUNTIES AND COUNTY AFFAIRS. [dIY. II. 

persons named in said list are not legal voters of such county, 
and had no right in law to sign said petition ; and shall also 
file in the office of said clerk, ten days before said September 
term, a list of such names as he has reason to believe are ficti- 
tious, together with his affidavit, indorsed thereon, that he has 
good reason to believe, and does verily believe, that such 
names are fictitious ; and such persons shall have the right to 
contest such petitions only as to the names included in said 
lists. 
Notice of filing Sec. 6. Whenever such petition or petitions and affidavit 
mH«t e bepub- name( ^ ^ n section two of this act shall be filed in the office of 
lished witnin the clerk of the county court of such county, it shall be the 
duty of the clerk, within ten days from the date of the filing 
of said petition or petitions and affidavit in his said office, to 
cause to be published in one or more newspapers published in 
such county, and if no newspaper shall be published in said 
county then in the newspaper published nearest to the county 
seat of said county, a notice that such petition or petitions 
and affidavit have been filed in his said office, stating the time 
when they were so filed, and setting forth therein the sub- 
stance of such petition or petitions and affidavit, and giving 
notice that on the first day of the next September term of 
said court, said court will hear testimony for and against said 
petitions, as to the list or lists of names on such petition, as 
may be filed in his office under and in compliance with section 
five of this act, and for or against such affidavit if the same 
county court has been traversed, as provided in section two of this act. It 
dencefoVand" sna ^ be * ne duty °f sa id court, on the first day of and during 
against petition the said September term, to hear all evidence for and against 
said petition or petitions, as to the list or lists of names, filed 
in said court under section five of this act, and to strike from 
such petition or petitions all such names proven by compe- 
tent evidence to be fictitious, or the names of persons having 
no legal right to sign the same under this act; and in case 
there shall be but one petition and no contest as to the same, 
or if there shall be a contest as to the same, and said petition 
shall, after striking therefrom all fictitious and illegal names, 
still contain the number of names of legal voters required by 
the second section of this act, the court shall order said elec- 
tion, according to the prayer of said petition. But in case 
there shall be two petitions filed in said court, praying for a 
vote to remove the county seat of such county to different 
points in said county, each, after striking therefrom all illegal 
and fictitious names, still being signed by two-fifths of the legal 
voters of the county, as required by section two of this act, 



DJV, II.] REMOVAL OF COUNTY SEATS. 83 

then if the petition praying for a vote to remove the county 
soar nearer to the geographical centre of the county than the 
point named in the other petition shall be signed by a number 
of names equal to or greater than one-half of the sum of the 
names signed to the two petitions, the said court shall order 
the election for the removal of the county seat to that point 
nearest to the geographical centre of the county, according to 
the prayer of said petition ; but if the other of said two peti- 
tions shall be signed by a number of legal voters of said county 
equal to three -fifths of the sum of the names signed to the 
two petitions, then the court shall order the election for the 
removal of the county seat of such county to said last men- 
tioned point, and not otherwise. In case of a contest as # to 
said petition or petitions, as provided for in this act, it shall 
be the duty of the clerk of said court, on request of the person 
contesting any petition under the provisions of this act, to 
issue subpoenas for such witnesses as said person shall name ; 
and it shall be the duty of said clerk, on request of any legal 
voter of the county, for the purpose of sustaining any petition, 
in like manner to issue subpoenas for such witnesses as he 
shall name — said subpoenas to be made returnable to the 
term of court at which such contest will be made. 

Sec. 7. All cases of contest arising upon said petitions or Contested 
affidavit shall have precedence over all other cases at the cases— how 
September term of said court, and shall be heard and deter- termined. 
mined at said term, and the decision of the county court shall 
be final. And in case of the sickness or other inability of said 
county judge to preside, or in case of a vacancy in said office, 
then it shall be the duty of the circuit judge of the circuit in 
which said county is located, to attend, hear and determine 
said contest. 

Sec. 8. Whenever the court shall order any county seat elec- challengers 
tion under the provisions of this act, the court shall appoint pointed Such 
three resident legal voters of the point to which it is proposed election to sit 

, o ii r i r • with judges ol 

to remove the county seat, tor each and every voting place in election. 

the city, precinct or township in which the county seat is 
situated, also to appoint three resident legal voters of the 
county seat for each and every voting place in the city, pre- 
cinct or township to which it is proposed to remove the county 
seat, to sit with the regular judges to act as challengers of 
election at the voting places to which they are respectively 
assigned, and it shall be their duty to act as such challengers, 
and to challenge any and all persons whom they have good 
reason to believe are not legal voters at such county scat elec- 
tion and they shall sit with such judges of election until the 



84 C0UXTIE3 AXD COUNTY AFFAIRS. [dIY. II. 

close of said election, and during the canvass of the. votes at 

said election. The said challengers, who are thus appointed 

to act with the regular judges of election, may, if they desire 

so to do, make an affidavit before any person authorized to 

administer oaths, setting forth in such affidavit that they have 

been appointed, as above provided, out of the. city, precinct, 

i township or ward, where they would otherwise be voters, and 

that they desire to vote at such county seat election ; which 

affidavit, together with the ballot, shall be sealed up in an 

envelope and left with one of the judges of election for the 

precinct, and on the day of election shall be by him presented 

to the board of election and opened in their presence. The 

affidavit shall be filed, kept and returned with the ballots for 

that precinct as other affidavits are, and the ballot shall be 

numbered and deposited in the ballot box, and the name 

entered on the poll books the same as other votes are. 

votin? shall be Sec. 9. The voting at county seat elections shall be by 

by ballot. ballot, and each ballot shall have printed or written thereon 

Form of ballot, the words " For removal," or "Against removal." The polls 

Polls-time of shall be opened at eight o'clock A. M., and remain open until 

cEsifngf and si x o'clock P. M., at which time the polls may be closed, unless 

a majority of the board shall determine to keep open later. 

But the polls shall not, in any event, be kept open later than 

eight o'clock P. M. of the day of said election. 

Registration Sec. 10. No registration of voters shall be made or required 

not required. f or l 10 lciing any county seat election under this act. The board 

of election shall, in each township, precinct or ward, keep two 

lists or poll books of the names of the persons whose votes are 

'received ; each name shall be numbered, and a corresponding 

number marked on each ballot before it is placed in the ballot 

box, which said poll books shall each be certified as correct by 

r.etums-bow the judges and clerks of election. At the close of the polls 

canvassed. -^ eac k p rec i nc t ? township or ward, the board of election shall 

canvass the votes cast at such poll or voting district, and shall 

make two tally lists, one of which, together with one of the 

aforesaid poll books, and the ballots cast in such precinct, 

township or ward, properly strung, and the affidavits made at 

such election, and certificate of the result of said election 

made and certified by such board, shall be sealed up together 

and delivered by one of the board of election, to be selected by 

the said board at that time, to the county clerk, within four 

days thereafter. The other poll book and tally list shall be 

retained by one of the judges of election for that township, 

precinct or ward. 

Sec. 11. No person shall vote at said election who does 



DIV. II.] REMOVAL OF COUNTY SEATS. 85 

not possess the qualifications mentioned in the affidavit in this persons chai- 
Bection. Any person offering to vote at any county seat JSIoattu' 11 
election, whose right to vote shall be challenged by any chal- 
lenger, member of the board of election, or by any voter of 
the county, shall answer under oath such- questions as may be 
propounded to him touching his qualifications as a voter, and 
shall take and subscribe the following oath : 

State of Illinois, 

County, 

I do solemnly swear that I am a citizen of the United States, and Form of oath, 
of this State [or I was an elector in this State on the first of April, 
eighteen hundred and forty-eight, or obtained a certificate of natu- 
ralization before a court of record in this State prior to the first of 
January, eighteen hundred and seventy, and] that I am above the 
age of twenty-one years ; that I have resided in this State for one 
year immediately preceding this election ; that I am a bona fide 
resident of this county, and have permanently resided herein for 
the last six months immediately preceding this election ; that I am 
a legal voter of [here insert the name of the election precinct], and have 
permanently resided therein for the last ninety days immediately 
preceding this election, and that I have not voted at "this election. 

(Signed) A. B. 

He shall also procure two witnesses, who are at that time Must also pro- 
legal voters of the township or precinct, who shall take andneSes?™^ 1 
subscribe the following oath, namely : 

State of Illinois, \ 

■ County, j * 

We, the undersigned, do solemnly swear that we are voters, and Form of oath 
legally entitled to vote at this election; that we have known A. B., to be taken by 
the person now offering to vote at this election, for six months ; that witness- 
he has been a permanent resident of this count}' for six months past, 
and for the ninety days immediately preceding this election has 
permanently resided in [township or precinct.] 

C. T), 
E. F. 

Which oath shall be subscribed and sworn before any officer 
authorized to administer oaths. The board of election shall 
receive and count the vote of any challenged person who shall 
present to them with his vote the oaths aforesaid. The said 
oaths shall all be carefully preserved by the board of election, 
and returned and ke.pt with the poll book, tally list and bal- 
lots, as provided by this act. Any person swearing falsely 
concerning his right to vote, or concerning the right of another 
to vote at any such election, or any person who shall cast a 
fraudulent vote at any such election, or who shall vote at such 
election not having a right to vote at such election, or who 
shall cast a vote at such election in any other name than his 



COUNTIES AND COUNTY AFFAIRS. [dIV. II. 



Penalty for own, or who shall vote more than once at such election, shall 
iT e o a r ri cafting e " De deemed guilty of a high misdemeanor, shall be liahle to be 
vo a te?etc. nt indicted therefor, and shall, on conviction, be punished by 
confinement in the penitentiary to hard labor for a term of 
not less than one year nor more than five years. 
Number of Sec. 12. The number of legal votes cast at any county seat 

^{^g,^* election held under this act, shall be deemed and taken for the 
as prima faae purposes of such an election as prima facie evidence of the 
number of legal number of legal voters of that county at that time, "entitled to 
countV. n SUCh YOte on ^ e question ; but in case it shall become necessary, in 
consequence of a contest of an election held under this act, to 
ascertain the number of voters of the county entitled to vote 
upon the question, the court in •which the contest may be 
pending may ascertain the number of such voters by taking, 
or causing to be taken, legal evidence, tending to show the 
actual number of the legal voters of the county, entitled to 
vote upon such question at the time of such election. Courts 
of equity shall have jurisdiction of all cases of contested elec- 
tion arising under this act, and may investigate and determine 
all questions of fraud and fraudulent voting connected there- 
with, and purge the poll books and returns of all illegal or 
fraudulent votes; and may investigate and ascertain the total 
number of legal voters of the county at the time of such elec- 
tion entitled to vote on the question, whether they voted or 
not, and ascertain and determine whether or not such election 
was fairly carried by three -fifths or a majority of all the legal 
voters of the county, as required by the Constitution, and make 
such decree as the circumstances of the case may require. 
Any of the legal voters and taxpayers of the county who may 
desire so to do, as well as the town, city or village, to or from 
which it is proposed to remove such county seat, may be made, 
or on their petition may become joarties to such suits, either as 
complainant or defendant." 
Votes, by Sec. 13. On or before the first Tuesday after said election, 

counted? the clerk of the county court shall summon to his aid two jus- 
tices of the peace, one of whom shall be a resident of the place 
to which it is proposed to remove the county seat, and the 
other a resident of the county seat, if such there be, and if 
there be no justices of the peace resident in those places, then 
any two justices of the peace of said county, who shall, together 
with said clerk, open and canvass the votes and returns of said 
election, made and filed in his office, in the same manner as 
now provided by law in the case of elections for county officers ; 
the result of which canvass shall, by the clerk of the county 
court, be spread on the records of the county court in counties 






DIV. II.] FEES AND SALARIES. 87 

not under township organization, and on th* records of the 
board of supervisors in counties under township organization, 
and also by him be duly certified to the secretary of state. 

. 14. When the attempt is made by such an election to Number of 
remove a county seat to a point nearer to the centre of such for removal". 01 
county than the county seat then is, and a majority of the 
legal voters of said county entitled to vote on the question of 
removal shall be " for removal," the county seat is thereby 
removed to the point named in the petition. When the 
attempt is made by such an election to remove a county seat 
to a point not nearer to the centre than the county seat then 
is. and three -fifths of the legal voters of such county entitled 
to vote on the question shall be "for removal," then said 
county seat of said county is thereby removed to the point 
named in the petition. 

Sec. 15. Any member of the board of election, county Penalty for 
judge, associate justice, county clerk, sheriff, or any other part of any offi- 
ofticers or persons who may be charged with the performance tSdrnfe^nv 
of any duty under this act, and who shall willfully fail therein, P^ sed h ? tlus 
or shall perform such duty otherwise than is in this act pre- 
scribed, shall be deemed guilty of a misdemeanor, shall be 
liable to be indicted therefor, and on conviction shall be fined 
not less than five hundred dollars nor more than five thousand 
dollars, or imprisoned in the county jail not less than six 
months nor more than one year, or both. 



FEES AND SALARIES.(l) 

DIVISION OF COUNTIES IN CLASSES. 

Sec. 13. That, for the purpose of fixing the fees and com- &»ws 1371-72, 
pensation of county and township officers in this State, the S&r? %i\ "2^" 

several counties therein are hereby divided into three classes, v v ' 

according to pppulation, as ascertained by the federal census dfvidefiSo 6 

' ■ ■ three classes. 

(1) The Constitution of 1870, on the subject of compensation of county officers, 
declares as follows : 

Art. X, Sec. 9. The clerks of all the courts of record, the treasurer, sheriff, coroner 
and recorder of deeds of Cook county shall receive as their onlv compensation for 
their services, salaries to be fixed by law, which shall in no case'be as much as the 
lawful compensation of a judge of the circuit court of said county, and shall be paid, 
respectively, only out of the fees of the office actually collected. *All fees, perquisites 
and emoluments (above the amount of said salaries") shall be paid into the county 
treasury. The number of the deputies and assistants of such officers shall be deter- 
mined by rule of the circuit court, to be entered of record, and their compensation 
shall be determined by the county board. 

Sec. 10. The county board, except as provided in section nine of this article, sha'.l 
fix the compensation of all county officers, with the amount of their necessary clerk 
hire, stationery, fuel and other expenses, and in all cases where fees are provided 



88 COUNTIES AXD COUNTY AFFAIRS. [dIV. II. 

of the year eighteen hundred and seventy, which classes shall 
be known as the first, second and third, as follows : 
counties of the Counties containing a population of not exceeding twenty 
first class. thousand inhabitants, to wit: The counties of Alexander, 
Bond, Boone, Brown, Calhoun, Carroll, Cass, Clark, Clay, 
Clinton, Crawford, Cumberland, DeWitt, Douglas, DuPage, 
Edwards, Effingham, Fayette, Ford, Franklin, Gallatin, Greene, 
Grundy, Hamilton, Hardin, Henderson, Jackson, Jasper, Jef- 
ferson, Jersey, Johnson, Kendall, Lawrence, Marshall, Mason, 
Massac, Menard, Mercer, Monroe, Moultrie, Perry, Piatt, 
Pope, Pulaski, Putnam, Richland, Saline, Schulyer, Scott, 
Stark, Union, Wabash, Washington, Wayne, White, William- 
son, and Woolford, shall belong to, and be known as, counties 
of the first class. 
Counties of the Counties containing a population of over twenty thousand 
second class. an( j nQ ^. exceec ji n g seventy thousand, to wit : Adams, Bureau, 
Champaign, Christian, Coles, DeKalb, Edgar, Fulton, Han- 
cock, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Knox, 
Lake, La Salle, Lee, ^ivingston, Logan, Macon. Macoupin, 
Madison, Marion, McDonough, McHenry, McLean, Mont- 
gomery, Morgan, Ogle, Peoria, Pike, Randolph, Rock Island, 
Sangamon, Shelby, St. Clair, Stephenson, Tazewell, Vermil- 
lion, Warren, Whiteside, Will and Winnebago, shall belong to, 
and be known as, counties of the second class. 

for, said compensation shall be paid only out of, and shall in no instance exceed, 
the fees actually collected. They shall not allow either of them more per annum 
than fifteen hundred dollars in counties not exceeding twenty thousand inhabi- 
tants ; two thousand dollars in counties containing twenty thousand and not exceed- 
ing thirty thousand inhabitants : twenty-rive hundred dollars in counties containing 
thirty thousand and not exceeding fifty thousand inhabitants; three thousand dol- 
lars in counties containing fifty thousand and not exceeding seventy thousand in- 
habitants; thirty-five hundred dollars in counties containing seventy thousand and 
not exceeding one hundred thousand inhabitants; and four thousand dollars in 
counties containing over one hundred thousand and not exceeding two hundred 
and fifty thousand inhabitants; and not more than one- thousand dollars additional 
compensation for each additional one hundred thousand inhabitants: Provided, that 
the compensation of no officer shall be increased or diminished during his term of 
office. All fees or allowances by them received, in excess of their said compensa- 
tion, shall be paid into the county treasury. 

Sec. 11. The fees of township officers, and of each class of county officers, shall be 
uniform in the class of counties to which they respeotively belong. The compensa- 
tion herein provided for shall apply only to officers hereafter elected, but ad fees 
established by special laws shall cease at the adoption of the Constitution, and such 
officers shall receive only such fees as are provided by general law. 

Sec. 12. All laws fixing the fees of State, county and township officers, shall termi- 
nate with the terms, respectively, of those who may be in office at the meeting of the 
first General Assembly after the adoption of this Constitution ; and the General As- 
sembly shall, by general law, uniform in its operations, provide for and regulate the 
fees of said officers and their successors, so as to reduce the same to a reasonable 
compensation, for services actually rendered. But the General Assembly may, by- 
general law, classify the counties by population into not more than three classes^ 
and regulate the fees according to class. 

This article shall not be construed as depriving the General Assembly of the power 
to reduce the fees of existing officers. 

Sec. 13. Every person who is elected or appointed to any office in this State, who 
shall be paid in whole or in part by fees, shall be required by law to make a semi- 
annual report, under oath, to some officer, to be designated"by law, of all his fees 
and emoluments. 



DIV 



II.] COOK COUNTY COMMISSIONERS. 89 



Counties containing a population exceeding seventy thousand counties of the 
inhabitants, to wit : The county of Cook, shall belong to, and tturd c ass ' 
be known as, counties of the third class. 



COOK COUNTY COMMISSIONERS. 

Section 1. That on the first Tuesday after the first Monday i, aw *i87i 72, 
of November, in the year of our Lord one thousand eight hun- ApV* 22,^i!'* 

dred and seventy -one, there shall be elected, by the legal * r— J 

voters of Cook county, fifteen commissioners, five of whom ^ n e d cl t e°n Ure f 
shall hold their office one year, five two years, and five three office of the 
years, to be determined by lot ; and annually thereafter there 00 
shall be elected five commissioners for the term of three years. 

Any vacancy may be filled at the next annual election, vacancy. 
Ten of said commissioners shall be elected from the city of 
Chicago, and five of said commissioners shall be elected from 
the towns outside of said city, as follows : One from the district Districts, 
composed of Lake View, Jefferson, Niles, Evanston, New 
Trier and Northfield ; one from the district composed of the 
towns of Wheeling, Palatine, Barrington, Hanover, Schaum- 
burg, Elk Grove and Maine ; one from the district composed 
of the towns of Leyden, Cicero, Proviso, Riverside, Lyons and 
Lake ; one from the district composed of the towns of Hyde 
Park, Worth, Calumet and Thornton, and one from the district 
composed of the towns of Bloom, Bich, Bremen, Orland, Palos 
and Lemont. 

The commissioners elected under this act shall be elected General ticket, 
upon a general ticket, and the votes shall be returned and can- 
vassed the same as for other county officers. Their term of when term be- 
office shall begin on the first Monday of December after their gm& ' 
election, and they shall hold their office until their successors 
are elected and qualified. 

Sec. 2. The said commissioners shall take the oath of office oath of office, 
prescribed by the Constitution. They shall have regular 
meetings on the first Mondays of December, March, June and 
September of each year. They shall be known as " The style of board. 
Board of Commissioners of Cook County," and as such board 
of commissioners shall supersede the board of supervisors in 
Cook county in the management of the county affairs of said 
county, and shall exercise the same powers, perform the same Powers and 
duties, be subject to the same rules, regulations and penalties, 
and receive the same compensation for their services as pre- 
scribed by lav/ for the board of supervisors. 



90 



COUNTIES AND COUNTY AFFAIRS. 



[DIV. II. 



ANIMALS. 



DOMESTIC ANIMALS PROHIBITED FROM RUNNING AT LARGE. 



Laws 1871-72. 
!>£■. 116. App. 
Jan. S3, 187a. 



Domestic ani- 
mals prohibit- 
ed from run- 
ning at large. 

Laws 1873, 

Myers' ed„ 

S, 169. A pp. 
May 2, '73. 



Penalty for vio- 
lationofsection 
one to be paid 
to the common 
school fund. 



How collected. 



Execution. 



County clerk 
shall give no- 
tice of election 
to vote for or 
against. 



Votes — how 
received and 
canvassed. 



Vote — how 
rescinded. 



Section 1. That it shall be unlawful for the owner or owners 
of any domestic animals of the species of horse, mule, ass, cattle, 
sheep, goat or hog, to suffer the same to run at large in any 
county in this State, after the first day of October, eighteen 
hundred and seventy -two, except as hereinafter provided. 

Sec. 2. Any owner or owners violating section one of this 
act shall, on conviction before any justice of the peace having 
jurisdiction, pay a fine not less than three dollars nor more 
than ten dollars for each and every offense, to the common 
school fund of the township. Any person who is or may be 
the owner of land, or who has or may have control of the same, 
may take up any domestic animal or animals when found near 
to or upon such land, such animal or animals being at large, 
in violation of section one of this act. The taker up of such 
animal or animals shall, within two days from the time of the 
taking up, make complaint and institute a suit, under the pro- 
visions of this act, against the owner or owners of such ani- 
mals, and if, upon the trial, judgment shall be for the people, 
execution shall issue immediately upon the judgment, and the 
animal or animals taken up shall be liable to levy and sale 
upon the execution the same as in other cases, anything in the 
exemption laws of this State to the contrary notwithstanding. 

Sec. 3. The county clerk of any county, wherever it may be 
unlawful for domestic animals to run at large by virtue of this 
or any special law T , on petition of one hundred or more voters 
therein, shall give notice with the election notices of the then 
next succeeding general election in such county, that at such 
election the voters of such county may vote for or against 
domestic animals running at large in such county, or any 
species thereof, to be mentioned in such notices, and separate 
ballot boxes shall be used at said election. Such votes shall 
be received and canvassed by the proper judges of election, 
and returns made in the same manner as the other election 
returns, and if a majority of the votes cast on such question is 
for domestic animals, or any species thereof, running at large, 
it shall be lawful in such county for such domestic animals, or 
species thereof, to run at large. 

Sec. 4. At any succeeding general election, on like petition 
and notice, the voters of such counties electing to allow domes- 
tic animals to run at large, may vote to rescind such former 



DIV. II.] ANIMALS — MARKS AXD BRANDS. 01 

election, and to come under the provisions of this law where 
no such vote is taken. 

Sec. 5. It shall be unlawful for domestic animals, or any i^s isto. 

. \ Myfru' e«l . 

species thereof, to run at large in any town, city or precinct ps. i^o, «pi>. 
in this State, when such animals were lawfully restrained from v__^_L, 
running at large before or at the time the act to which this is Lawful for 
an amendment took effect, until permitted to do so by the ^aYs^ruTat 
lawful authority of such town or city, or by a majority vote of lar s e - 
such precinct. 

Whereas, in some counties in this State, many towns, cities 
and precincts had lawfully restrained domestic animals from 
running at large previous to the passage of the act to which 
this is an amendment, and therefore abandoned fencing ; and 
whereas, under the provisions of said act, the majority vote 
in some of such counties was against restraining such animals 
from running at large, leaving many farms unprotected by 
fence, at the mercy of such animals, thereby creating an emer- Emergency. 
gency ; therefore this act shall take effect and be in force from 
and after its passage. 

THE PREVENTION OF CRUELTY TO ANIMALS. 

Section 1. The county boards or other bodies having con- Lami 871-72, 
trol and management of the county affairs of the several SScii. 1,* i»t£' 

counties of this State, are hereby authorized and impowered *" — v ' 

to take all such necessary measures and to institute such pro- toenforceYaws 
ceedings as they may deem proper to enforce all the laws of ^T^ 
this State for the prevention of cruelty to animals. animals. 

MARKS AND BRANDS. 

Section 1. Every person in this State who hath cattle, lawowi^. 
horses, hogs, sheep or goats, may have an ear -mark and Mcl1 - 29 » ' 7a - 
brand, and but one of each, which shall be different from the * v ' 
ear -mark and brand of his neighbors; which ear -mark and brand, 
brand may be recorded by the county clerk of the county 
where such cattle, horses, hogs, sheep or goats shall be. 

Sec. 2. It shall be the duty of the county clerks, in the County clerks 
respective counties of this State to keep a well bound book, in to ' eeprecor 
which they shall record the marks and brands of each indivi- 
dual who may apply to them for that purpose ; for which they 
shall be entitled to demand and receive the sum of fifteen 
cents ; and the book in which the same are recorded shall be 
open to the examination^of every citizen of the county at all 
reasonable office hours, free of charge. 

Sec. 3. If any dispute shall arise about any ear-mark or Disputes de- 
brand, it shall be decided by reference to the book of marks cided * 



brands in pres- 
ence of wit 
nesses. 



92 COUNTIES AND COUNTY AFFAIRS. [dIV. II. 

and brands kept by the county clerk, but such book shall be 
prima facie evidence only. 

Marks and SeC. 4. Any person purcnasmg or acquiring horses, cattle, 

JC "hogs, sheep or goats, when he brands or marks the same in his 
brand or mark, after the acquisition of the same, may do it in 
the presence of one or more of his neighbors, who are autho- 
rized to certify to the fact of the marking or branding being 
done, when done, and in what brand or mark the same were 
previously, and in what brand or mark they were re -branded 

Certificate or re -marked. Such certificate shall not be deemed evidence 

evidence of „ . •i-i-i-ii i • 

property. oi property in the animal branded, but only prima jacie evi- 
dence of the facts therein certified to. 

Acts repealed. Sec. 5. That chapter sixty -eight (68) of the Revised Stat- 
utes of 1845, entitled "Marks and Brands," and all other acts 
in conflict with this act, are hereby repealed. 



BONDS. 

FOR BUILDING COURT-HOUSE. 

iLawHi8-yi-72, Section 1. The board of commissioners of counties con- 
]£eb. 23', *72. p * taining over one hundred thousand inhabitants may, in their 

v v ' discretion, by a two-thirds vote, for the purpose of erecting a 

£vingover court - house on the site heretofore used for that purpose, and 
one hundred a i a ji and other necessary public buildings for the use of said 

tnou.S3.nQ *} «/ j. o 

inhabitants county, at such points and places as may be selected by said 
isuebonds and board, and for the purpose of funding the floating debt of said 
forcounty°puJ coun ty? an( l to provide for the restoration and perpetuation of 
poses. the public records, issue the bonds of said county from time to 

time, as the same may be required, to an amount not exceed- 
ing in the aggregate the sum of fifteen hundred thousand dol- 
lars, to bear interest not exceeding seven per centum per 
annum, payable semi-annually: Provided, that the issuing of 
constitutional said bonds is hereby limited by the constitutional limitation, 
which limits the amount of indebtedness, including that then 
existing, to five per centum on the value of the taxable prop- 
erty in the county, to be ascertained by the last assessment 
for State and county taxes previous to the incurring of such 
indebtedness, the principal and interest of said bonds to be 
made payable at such time or times, not exceeding twenty 
years from the date thereof, and at such place or places as 
Bonds may be suc h Doar d shall designate. And the said board may author- 
ize said bonds to be sold from time to time, at not less than 
their par value, and by a two -thirds vote of said board, they 
may be sold at less than par; the proceeds thereof to be paid 



DIV. II.] BONDS. 03 

into the county treasury, to be used as required for the pur- 
poses aforesaid. 

Sec. '2. The said bonds may be issued in such sums, not in what sums 

exceeding five thousand dollars each, as said board of commis- lssucl1 ' 
sioners shall determine, and shall be signed by the chairman 
of said board and the clerk of the county court of said county, 
and shall be sealed with the seal of said county court, and 
registered by the treasurer of said county, and interest cou- coupons. 
pons may be attached thereto, signed by the treasurer of said 
county only. 

Sec. 3. In case said board of commissioners shall issue and Taxes to be 
sell the bonds of said county, in pursuance thereof, they shall, bonds.* pay 
from time to time, as the same may be required, cause taxes 
to be levied upon the taxable property within the limits of 
said county, for the payment of the principal and interest of 
said bonds, as the same shall become due and payable, which 
taxes shall be collected as other county taxes, and when col- 
lected shall be applied to the payment of said principal and 
interest. 

Sec. 4. Whereas, by reason of the recent destruction by Emergency, 
fire of public buildings and other property, an emergency 
exists, requiring this act to take effect immediately : therefore 
this act shall take effect and be in force from and after its 
passage. 

BONDS IN AID OE RAILROADS OR PUBLIC IMPROVEMENTS. 

Section 1. In all cases where any county, city, township, J^V* 1 ™ 7 !' 7 *' 
school district, or other municipal corporation, have issued MarciTa6.*7«I 
bonds or other evidences of indebtedness for money, on ' > Tl 
account of any subscription to the capital stock of any rail- townships? eS ' 
road company, or on account of or in aid of any public tikeulfand l ° 
improvement, or for any other purposes, which are now bind- cancel out- 
ing or subsisting legal obligations against any such county, and other 
city, township, school district or other municipal corporations, Ln/fundS 
and remaining ontstanding, and which were properly author- same - 
ized by law, the proper authorities of any such county, city, 
township, school district or other municipal corporations 
may, upon the surrender of any such bonds, or other evidences 
of indebtedness, or any number thereof, issue in place or in 
lieu thereof, to the holders or owners of the same, new bonds 
or other evidences of indebtedness, in such form, for such 
amount, upon such time, not exceeding the term of twenty 
years, and drawing such rate of interest as may be agreed 
upon with such holders or owners: Provided, such new bonds 
or oilier evidences of evidences, shall not be for a greater sum 



94 COUNTIES AXD COUNTY AFFAIRS. [dIV. II. 

Proviso, that than the principal sum or sums named in such original bonds 
shaifnot be^or or other evidences of indebtedness, nor bear a greater rate of 
greater sums interest than the rate represented in the Original bonds or 

than the orig- . \ ° 

iuais. other evidences ot indebtedness; and such bonds or other evi- 

dences of indebtedness, so issued, shall show on their face that 
Proviso that they are issued under this act : And, be it further provided, 
shall beauthor- that the issue of such new bonds in lieu of such indebtedness, 
vote. S maj ' shall be authorized by a vote of a majority of the legal 
voters of such county, city, township, school district or other 
municipal corporation, voting either at some annual or special 
election of such municipal corporation. 
Emergency. Sec. 2. Whereas some counties, cities, townships and other 

municipal corporations in this State, have outstanding bonds 
and other evidences of indebtedness that will soon fall due, 
and are without any remedy for renewing or funding the same, 
therefore this act shall be in force from and after its passage. 

BONDS IX AID OF RAILROADS AXD OTHER CORPORATIOXS. 

¥.awsi87i-72. Sectiox 1. The treasurer of state, and all county treas- 
Mur<-ii V, 'Va* urers in the State, at whose office any county, town, or city 
v — "v - "^ bonds or coupons are made payable by law, which have been 
county treas- i ssue( l in aid of an J railroad or other corporation, or in pay- 
urers to deliver me #t f the stock of any such railroad or other corporation in 

up bonds and . J . K 

coupons which tins otate, shall, at least once in each year, alter this act shall 
ufpersoiis pai be in force, if so requested by the proper authorities of any 
receive them. sucn county, town or city, account to and with any person 
designated by any such county, town, or city, for any and all 
money that may have come to his or their hands for the pay- 
ment of any bonds or coupons, so issued as aforesaid, and shall 
upon such accounting, deliver up to such person so designated 
by any of the counties, towns or cities aforesaid, any and all 
bonds or coupons that he or they may have fully paid off and 
discharged out of the money coming into their hands for such 
purpose, and to take a voucher for all such bonds or coupons 
so delivered. 
Fees for col- Sec. 2. There shall be allowed and paid out to the county 

treasurers, and to the county, town and city collectors for col- 
lecting, receiving and paying out any and all taxes levied for 
the payment of any such bonds or coupons or interest on the 
same, the amount of one -half per centum, as fees for such 
Proviso as to service, and no more, for such amount so paid out, Provided, 
if any of the above officers are now or may be hereafter paid 
a salary for the performance of these duties, then they shall 
not be paid any other compensation whatsoever. 
5au2! mg Sec. 3. All laws in conflict with this act are hereby repealed. 



lectins 



cers, 



DIV. III. J COUNTY TREASURERS AND COUNTY FUNDS. 95 



DIVISION III. 
COUNTY TREASURERS AND COUNTY FUNDS. (1) 

Section 1. There shall be elected in each county of this state, 52Tp S Jg T £ 
a county treasurer, who shall hold his office four years, and until 137. ' 
his successor is elected and qualified. In counties hereafter to be ^-^-^-^-^ 
organized, they shall be elected at the first election of county com- Election of 
missioncrs, and in like manner every four years thereafter. I n couny reasurer< 
counties now existing, they shall be elected at the periods and in 
the order of time by law established. 

Sec. la. County treasurers shall hereafter be elected on the first Laiwi85i,p. 
Tuesday after the first Monday in November, A. D. eighteen hun- ' " 

dred and fifty-one, and every two years thereafter. elected. 

Sec. lb. So much of any and all laws now in force as provides Acta repealed, 
that county treasurers shall hold their offices for the term of four i d « 
years, is hereby repealed. 

Sec. 2. Each county treasurer, previous to entering on the Oath of office, 
duties of his office, shall take and subscribe the following oath, to- 
wit: (2) 

"I, A. B., treasurer of the county of , in the State of Illinois, Form of oath. 

do solemnly swear (or affirm), that I will honestly and faithfully pay over 
to the proper officers and individuals authorized by law to receive the 
same, any and all current money, and other funds that may come into my 

possession by virtue of my office as treasurer of the county of , 

and that I will not, directly or indirectly, exchange, lend or use any por- 
tion thereof, for the purpose of speculation, or will I appropriate or apply 
any portion thereof, to my own use or benefit, or for the use or benefit 
of another, and that I will faithfully and impartially, and to the best of 
my skill and judgment, perform the duties required of me by law as 
treasurer of the county of . :if, A. B. 

"Sworn to and subscribed before me this day of . 18 — . 

" C. D., Justice of the peace for county." 

Sec. 3. Each county treasurer, before he enters upon the duties To give bond, 
of his office, shall also execute a bond, in such, penalty and with 

F(l) Tbe law concerning county tr usurers in counties adopting township organization, has 
been amended by an article of the township organization act. See township organization 
act, Article 15, post, p. 140. 

(2) The form of oath here provided is superceded by that prescribed by the new consti- 
tution, Art. 5, §25, which is as follows : 

Form of oath of office. 
I do solemnly swear (or affirm, as the case may be) that I will support 
the constitution of the United States, and the constitution of the State of 
Illinois, and that I will faithfully discharge the duties of the office of 
county treasurer, according to the best of my ability. 



96 COUKTT TREASURERS AXD COUNTY FUNDS. [dIV. III. 

such security as the county commissioners shall deem sufficient; 

which bond shall be in substance in the following form, to-wit: (1) 

Form of bond. << Know all men by these presents, that we, A. B., principal, and C. D., 

and E. F., securities, all of the county of , and State of Illinois, are 

held and firmly hound to the people of the State of Illinois, in the penal 

sum of dollars, for the payment of which well and truly to be 

made, we bind ourselves, each of us, our heirs, executors and adminis- 
trators, firmly by these presents : signed with our hands, and sealed with 

our seals. Dated at , the day of , 18 — . The condition of the 

above bond is such, that if the above bounden A. B. shall perform all the 
duties required by law to be performed by him, as treasurer of the said 

county of in the time and manner prescribed by law ; and when 

he shall be succeeded in office, shall surrender and deliver over to his 
successor in office, all books, papers, moneys and other things belonging 
to said county, and appertaining to his said office, then the above bond 
to be void, otherwise to remain in full force. 

"Signed, sealed, and delivered'! V '' L SEAL -J 

in presence of G. H." / R F^sSa*.] 

Laws, 1851, p. Sec. 3a. The failure or refusal of any person heretofore or here- 

15, Feb. l. after elected, or appointed to the office of county treasurer, to exe- 
cute any bond required by any law passed before or subsequent to 
the election, shall vacate the office, and a successor shall be ap- 
pointed, in counties having adopted township organization, by the 
board of supervisors, and in other counties, by the county courts ; 
such successor to execute bond or bonds and execute the duties of 
the office as though he had been originally elected or appointed to 
that office. 

Treasurer to keep g EC- 4. The county treasurers of the several counties in this 
state, shall each of them keep a book, in which they shall keep a 
regular, just and true account of all moneys and revenues received 
by them respectively, stating therein particularly in what kind of 
funds each particular sum was received, whether in gold, silver 
county orders or any other funds authorized to be received as rev- 
enue, by the laws of this state. They shall also keep a regular, 

whom received. J ust > auc ^ true account of tne ^ me when, of whom, and on what 
account each particular sum in money, or other funds, may have 
been received by them. (2) 

(1) The form of condition in the treasurer's bond is amended by the township act, Art. 15, 
§1. See post, p. 140. 

The county treasurer is made county collector in counties under township organization, 
and is required to give bond as such. *See title " Kevenue " Div. Till., collection, § 2,post, 

(2) Where the public funds are kept by the county treasurer, in the county 
safe, in the ofiBce provided for the treasurer by the county, and there is no neglect on the part 
of the treasurer, if the funds are stolen from the safe, the county will sustain the loss. 
The proper course would be for the county commissioners to credit the treasurer upon 
settlement with the amount of such loss. The loss will not fall upon any particular fund, 
whether state, school or town, but upon the general fand of the county, and the amount 
thereof should be included in the next tax levy for general county purposes. But when the 
county treasurer is in the habit of mixing his own funds with those of the public, or of 
depositing in a bank a portion of the public funds with those of his own, indiscriminately, 
and funds are thus stolen from the county safe, he cannot claim that the funds taken 
belonged exclusively to the county, and thereby be exonerated, but on the contrary, such 
mixing of funds is a'conversion, and the use thereof becomes a criminal act, and an indict- 
ment would lie against him therefor. There is also a remedy against him by prosecution 
of his official bond as treasurer, whereb.^all the merits of tho case would appear. Opin. 
Att'y Gen'l Colyille, (Minn.) April 14. IS06. 



Kind of funds. 



MY. III.] DUTIES OF TREASURERS. 97 

Sec. 5. They shall also keep a regular, just and true account A ^ount of fand 
of all moneys and funds paid out by them agreeably to law, stating 
therein particularly on what account each particular sum was paid 
out, to whom paid, the particular kind of money or funds paid out 
to each individual, and the time when such payment was made. 
The books and accounts aforesaid to be free for the inspection of 
any individual who may wish to examine the same. 

Sec. 6. No money, county orders or other funds shall here- Pay out oa or- 
after be paid out of any county treasury in this state, except in ders 0D ' l, ' 
accordance with an order or decree of the county commissioners' 
courts respectively, or by virtue of a law specifically directing such 
payment to be made. 

Sec. 7. It shall be the duty of the treasurers of each and every to m «ip report 
county to report to the county commissioners' court of their res- t0 CfmQt y bo * rd « 
pective counties, at the regular terms of said courts, the amount 
of money, county orders, or other public funds, in their possession ; 
also, the amount of money, county orders and other public funds 
received by them since their last reports. They shall also state in What report 
said reports, the amount they may have received from each and* 1 
every source of revenue, by whom, on what account, in what kind 
of funds, and at what time the same may have been paid into ths 
treasury. The said treasurers shall also report to the county conir 
missioners , courts of their respective counties, at the regular terms 
of said courts, regular, just and true accounts of all payments out 
of the treasury, stating particularly at what time, on what account, 
in what kind of funds, and to whom each particular sum was paid 
out. 

Sec. 8. The clerks of the county commissioners' courts of the Reports to bo 
several counties in this state respectively, shall number, file, and 
carefully preserve the reports mentioned in the eighth section of 
this chapter and the said reports shall be free for the inspection^ of 
any individual who may wish to examine the same. 

Sec. 9. No clerk of any county commissioners' court in this cierk not to re- 
state shall receive any money claimed by or due to either of the ceive mone y- 
counties of this state, from any source whatever, whether on account 
of revenue, costs or fines, or from merchants, grocers, tavern-keep- 
ers, showmen, peddlers, or ferry licenses, or from any other source 
whatever. 

Sec. 10. No claim of any county, whether for revenue, costs aii moneys to be 
or fines, or for merchants, grocers, tavern-keepers, showmen, ped- paid t0 treaBurer 
dlers or ferry licenses, or from any other source whatever, shall be 
considered as having been paid and satisfied until the money or 
other funds shall have been paid to the treasurer of such county, 
and his duplicate receipts had therefor, which receipts shall specify Duplicate rc- 
the kind of money or other funds in which the payments shall have cei P t3 therefor, 
been made ; one of which receipts shall be presented to the clerk 
of the county commissioners' court of the proper county, which 
said clerk shall number, file and carefully preserve the same in his 
office, which aforesaid duplicate receipts, it shall be the duty of the 



98 



COUNTY TREASURERS AND COUNTY FUNDS. 



[DIV. III. 



Settlement of 
Treasurer. 



If defaulter. 



JEmbezzlement 
of public funds 
declared felony. 



treasurer to give to any person who shall pay into the county 
treasury any money or other funds as aforesaid. 

Sec. 11. The county commissioners' court of each and every 
county in this state shall, at their June and December terms in 
each year, settle with their county treasurer, and count the funds 
then in the treasury of their county ; and the clerk of said court 
shall then enter on the records of said court the amount and kind 
of funds found to be in the treasury at the time. 

Sec. 12. Should the treasurer, at any such settlement, prove a 
defaulter, and be actually in arrears with the county, the county 
commissioners shall immediately dismiss him from office, and com- 
mence suit against him on his official bond. (1) 

Sec. 13. If any state or county officer, school commissioner, or 
any other person charged by law with having the possession and 
the safe keeping of any public money, auditor's warrants, county 
orders or other funds belonging to the state, or to any county in the 
state, or in any way pertaining to the school funds or any county 
or township therein, shall convert to his own use, in any way what- 
ever, or shall use, by way of investment in any kind of property 
or merchandize, or for his own use shall loan, with or without in- 
terest, any portion of the public moneys, auditor's warrants, county 
orders, or any other funds intrusted to him for safe keeping, dis- 
bursement, transfer or for any other purpose, every such act shall 
he deemed and adjudged an embezzlement of so much of said 
moneys, auditor's warrants, county orders or other funds, as shall 
fce thus taken, converted, invested, used or loaned, which is hereby 
declared to be a felony. Any officer of the state, or of any county, 
or of any township, and all persons advising or participating in such 
act, being convicted thereof before any court of this state of competent 
jurisdiction, shall, in case the sum so embezzled, taken, converted, 
invested, used or loaned, be less than fifty dollars, be fined in a sum 
not exceeding two hundred dollars, or imprisoned in the jail of the 
proper county not exceeding three months, or both, at the discre- 
tion of the court before which such conviction shall be had; and 
in case the sum so embezzled, taken, converted, invested, used or 
loaned, shall exceed fifty dollars, then the said officer or other per- 
son so convicted, shall be fined in a sum double the amount of the 
sum so embezzled, taken, converted, invested, used or loaned, and 
confined in the penitentiary not exceeding ten years, nor less than 
one year ; Provided, hoicever, That this chapter shall not be so con- 
strued as to extend to any public officer or agent who shall loan 
any school or other fund in pursuance of any of the laws of this 
state. 

Sec. 14. The county commissioners' courts of this state shall 
publish annually at their June terms, in a newspaper, if one is 
printed in the county, a full and perfect statement of the financial 



Officers advising 
embezzlement 
deemed guilty. 



Proviso as to 
school officers. 



Statement of 
financial officers 
to be published. 



(1) County commissioners can only remove a county treasurer for cause specified by the 
statute. They do not possess general powers of removal in this regard. Clark v. Tin 
People ex rel., etc., 15 111. R., 213. See post, sec. 16. 



DIV. III. J DUTIES OF TREASURERS. 90 



affairs of their respective counties, and if a newspaper is .not pub- 
lished in said county, then the clerics of said courts shall post the 
same up ID their respective offices, which shall be kept there for 
the inspection of all persons, at all seasonable hours, who may 
desire to examine the same. 

Sec. 15. The county commissioners' court of any county in this Settlement ma/ 
state may at any time when any two of them think it for the inter- 
ests of the people of their county so to do, call through their clerk 
upon the treasurer of their county for a settlement, and should said 
treasurer neglect or refuse to appear and make settlement as noti- 
fied to do, said commissioners shall declare his office vacant, and 
proceed upon his bond as required to do in this chapter. (1) 

Sec. 16. Should the county commissioners' court of any county Depreciated 
in this state be of opinion that the treasurer of their county has at 
any time used the funds of said county when current, and replaced 
the same in depreciated funds, they shall have the power to ex- 
amine said treasurer under oath as touching said transaction, and 
if it shall appear that he has parted with any current funds belong-' 
ing to the county, and replaced the same with funds less valuable, 
they shall immediately dismiss him from office. (2) 

Sec. 17. Should any county treasurer be dismissed from office Vacancy, how 
pursuant to the provisions of this chapter, it shall be the duty of 
the county commissioners' court to appoint some suitable person to 
fill the vacancy so occasioned, and the person so appointed shall Repealed, 
give bond and security as now required by law of county treasur-p^^^' 2, 
ers. and shall perform all the duties enjoined upon the county 
treasurer until one is elected and qualified. 

Sec." 18. If any clerk, county commissioner or treasurer of anyP enal tJ' f< > r ne «- 
county in this state, shall neglect or refuse to perform any of the 
duties required of them by this chapter, they shall severally forfeit 
a sum of not less than fifty dollars, and not exceeding one thousand 
dollars, according to the nature and aggravation of the offence, 
to be recovered by indictment in the circuit court of the proper 
county, or by action of debt by any person who shall sue therefor, 
one-half to the person sueing, and the other half to the proper 
county. 

Sec. 19. Whenever any sheriff, coroner, constable, justice of the ^"funds pay 
peace or probate justice of the peace in this state, shall, after pro- 
per demand made, fail, neglect or refuse to pay over any sum or 
sums of money collected or received by such officer, in and by virtue 
of his office, his said office shall be forfeited and vacated. 

Sec. 10. Whenever in pursuance of the laws of this state, any R ^ m0 J^ r l ^° r ^ ct 
judgment shall be had or taken, against any sheriff, coroner, con- 10 pay over funds 
stable, justice of the peace, or probate justice of the peace, for any 
failure, neglect or refusal of such office to pay over any sum or 

(1) See ante, sec. 12, p. 82. which is to the same effect as sec. 15, above. 

(2) See ante, sec. 12, note 



100 



COUNTY TKEASURERS AND COUNTY FUNDS. [DIV. III. 



Aaditor's war- 
rants to pay 
taxes at par. 



Penalty to dis- 
count warrants. 



sums of money collected or received by him, in and by virtue of 
his office, and it shall appear to the satisfaction of the court, that 
proper demand for the same has been made, it shall be the duty of 
the court, or justice of the peace before whom such judgment is 
had or taken, further to adjudge and decree that the office of such 
officer, so failing, neglecting or refusing, as aforesaid, is forfeited 
and vacated, and such vacancy shall be filled as in other cases of 
vacancy, as is now provided by law. 

Sec. 21. The collectors of the state revenue in the several 
counties in this state, shall receive auditor's warrants in payment 
of any or all taxes due the state, in their respective counties, at 
par, and they shall not be permitted to take, buy, share or receive, 
directly or indirectly, by themselves or agent, any auditor's warrant 
or warrants, at less than the full sum due thereon, to the holder of 
such warrant or warrants. 

Sec. 22. For any violation of the provisions of the preceding 
section by any collector or collectors aforesaid, he or they shall be 
liable to double the amount so made by purchasing or sharing said 
warrants, at less than their face, in an action of debt, before any 
justice of the peace or court of record of the proper county. One 
half of all sums so collected to go to the person complaining, and 
the other half to go to, and form a part of the school fund of the 
county where such collector may reside. 

Sec. 23. It shall be the duty of the county treasurer of any 
county in this state, whenever any county ord^r is presented for 
payment, to indorse on the back of any fetich order, the time when 
the same was presented for payment; and it shall also be the duty 
of the said treasurer, to set down ik a book to be kept by him for 
that purpose, the amount and da*e of all such county orders, to 
whom made payable, and the timo when presented to the said treas- 
urer for payment; and all county orders shall be paid according 
to their original dates j and it shall be the duty of the county treas- 
urer, whenever any money comes to his hands, to set apart the 
amount of the order presented as aforesaid, which money shall be 
kept by the treasurer until called for; and the said treasurer, 
when he goes out of office, shall deliver said book, containing a 
list of the county orders so presented, to his successor, who shah 
in all things act as though the entries of orders weie made oy 
himself. 



Indorsement on 
county order. 



Orders paid ac- 
cording to date. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 101 

DIVISION IV. 
REVENUE. 

I,aw«1871-72, 

ASSESSMENT AND COLLECTION OF TAXES. ffih^ao*™* 

Section 1. The property named in this section shall be Property to be 
assessed and taxed, except so much thereof as may be, in thisJSed? 
act, exempted :(1) 

(1) TJic term "Property," wherever used in this act, is held to include every 
tangible thing, being the subject of ownership, whether animate or inanimate, real 
or personal. Cleghom v. Postltwalte, 43 111. R., 437. 

The teirm personal property , applies as well to notes and moneys as to goods and 
chattels; the possession of which is prima facie evidence of ownership. Broionelly. 
Dixon, 37 111. R., 197. 

County orders and county bonds are subject to taxation. Opinion Auditor 
Mixer, April 2, 1867; June 13. 1868. 

Money loaned or on dejtosit in a bank, or a note secured by mortgage, are sub- 
ject to taxation. Opinion Auditor Miner, June 10, 1868; Trustees, etc., v. McConnell, 12 
111.. R., 138; People v. Worthington, 21111, K., 171. 

Shares of joint stock companies owned in this State are liable to assessment and 
taxation under the laws of this State, whether such companies are located in this 
State or not. Opinion Auditor Miner, July 25, 18C7; See Inhabitants Great Barring- 
ton v. Commissioners Berkshire County, 16 Pick. R., 572. 

Bonds deposited with the auditor to secure the redemption of bills issued by 
banks, are subject to taxation. Bank of Republic v. County of Hamilton, 21 111. R., 54. 

Bonds that are void cannot be rendered valid by assessment and payment of taxes 
on them. Marshall Co. v. Cook, 38 111. R., 58. 

In case of an agreement in writing, wherein A. agrees to convey to B. certain lauds 
on the payment of a stipulated sum, and B. had paid a portion, the amount paid had 
been assessed, and the board of reviewers had ordered said assessment to be stricken 
from the list, deciding that said credits were not taxable ; it is the opinion that the 
board exceeded their authority, which is thought to extend only to correction of 
erroneous valuations. As to whether property is taxable, the board of supervisors 
proceed under section 33 of this act ; therefore the assessment should not be stricken 
from the list on proceedings already had. That the sums payable by B. are " cred- 
its " and subject to taxation, to the extent the owner A. believes will be received, or 
can be collected. See \ 3. Opinion Auditor Miner, January 5, 1867. 

The consideration received on sale of land, whether money or notes, must be taxed, 
notwithstanding the land is still taxed. Opinion Auditor Miner, April 18, 1867; 
People v. Worthington, 21 111. R., 171. 

For the purjwse of taxation, 'the law regards lands and improvements as a 
whole, except for obtaining a correct valuation. When the valuation is ascertained, 
and tax charged, it is against the tract or lot, including improvements. If sold for the 
tax, all is sold together. Arrangements between lessor and lessee are not to be con- 
sidered by the revenue officers. Opinion Auditor Miner, April 30, 1867. But where a 
building is set on posts to denote its temporary condition, under a provision in the 
lease to remove it, it is held to be personal property. Bullou v. Jones et al., 37 111. R., 
95 ; see also Titus et al. v. Mabee et al, 25 111. R., 257. 

Warehouses and other buildings on railroad lands, under lease, are taxable as 
separate property. Opinion Auditor Miner, May 21, and June 19, 18R7. 

Moneys and credits of all persons in this State are taxable iu this State with- 
out reference to the temporary location thereof. Opinion Auditor Miner, April 
13,1867. 

While the transient visit of a person for a time at a place may not make him a 
resident while there, yet, if he has a regular and permanent business there, such as 
the loaning of money for himself and others, and remains there continuously for a 
time sufficiently extended to enable him to transact that business, which is his only 
known business or occupation, that will be regarded as his place ot residence, so as 
to subject his own moneys and credits, employed in such business, and also the 
moneys and credits of other persons who may reside out of this State, but which are 
used and controlled by him as their agent, to taxation at such place, if in this State ; 
and this although he may at the same time have a home or domicile in another 
State, where he also resides during certain limited portions of the year. Tazewell Co. 
v. Davenport, 40 111. R., 197. 

The, principles of " equality" and " uniformity" are indispensable to all legal 
taxation, general or local. City of Chicago v. Lamed et al., 34 III. R., 203. The rule of 
uniformity of taxation prescribed in the constitution, requires that one person shall 



102 REVENUE. [div. jy 



First — All real and personal property in this State. 

Second — All moneys, credits, bonds or stocks, and other 
investments, the shares of stock of incorporated companies and 
associations, and all other personal property, including prop- 
erty in transitu to or from this State, used, held, owned or 
controlled by persons residing in this State. 

Third — The shares of capital stock of banks and banking 
companies doing business in this State. 

Fourth — The capital stock of companies and associations 
incorporated under the laws of this State. 

PROPERTY EXEMPT FROM TAXATION. 

Sec. 2. All property described in this section, to the extent 
herein limited, shall be exempt from taxation, that is to say :(1) 

not be compelled to pay a greater proportion of the taxes, according to the value of 
his property, than another. Bureau County v. Chicago, etc., It. Ji. Co., 44 111. R.. 230. 
Under this rule, a portion of the citizens of a town could not be exempted from road 
taxes while the burden is imposed on others. O Kane v. Treat el al., 25 111. R., 507. 
But a tax imposed on a corporation as such, is not a tax on the person or properly of 
the corporation or stockholders. Ducat v. City of Chicago, 48 111. R., 173. 

A.n assessment, commonly called special assessment for street improvement in a 
city, is not a tax, and the same rules applicable to one do not necessarily apply to 
the others. City of Chicago v. Colby, 20 111. R., 614; Canal Trustees v. City of Chicago, 12 
111. R., 406. 

In the construction of statutes, it will never be presumed that the legislature 
intended to abandon its rights^as to the mode of assessing and collecting the Stale 
revenue. Bank of the Republic v. Hamilton County, 27 111. R., 54. 

The jurisdiction of the State, on the subject of taxation for State purposes, is 
supreme, over which the government of the United States can have no power or 
control. Slate Treasurer v. Collector of Sanga?non County, 28 111. R., 512 ; The People v. 
Bradley el al., 39 111. R., 130. But the federal constitution limits the power of taxation 
by a State in express terms as to imports and exports, and by implication, as to those 
instruments employed by the general government to carry out its authority as gov- 
ernment bonds, and the operation of such instruments. The People v. Bradley el al., 
39 111. R., 130. 

A law of a State including steamboats as a portion of the property of an individual 
subject to State taxation, is valid. It does not interfere with the power of Congress 
to regulate commerce, nor is it a tonnage duty. Perry v. Torrence, 8 Ohio R., 521. 

A sum of money, certain to be received annually and at stated periods, is, within 
the meaning of the tax law, an annuity, unless the same be receivable as a pension, 
a salary, or as compensation for labor or services subsequently to be performed. 
Wetmor'e v. State, IS Ohio R., 77. 

The ternt " investment in stocks," embraces within its meaning shares in the 
capital stock of banks and banking associations, and includes as well shares in 
the capital stock of national banks. Ihe People v. Bradley et al., 39 111. R. 131. 

The new constitution declares, Art. 9, Sec. 1. The General Assembly shall pro- 
vide such revenue as may be needful, by levying a tax, by valuation, so that every 
person and corporation shall pay a tax in proportion to the value of his. her or its 
property — such value to be ascertained by some person or persons, to be elected or 
appointed in such manner as the General Assembly shall direct, and not otherwise; 
but the General Assembly shall have power to ta'x peddlers, auctioneers, brokers, 
hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, gro- 
cery-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express 
interests or business, venders of patents, and persons or corporations, owning or 
using franchises and privileges, in such manner as it shall, from time to time, direct 
bv general law, uniform as to the class upon which it operates. 

"Sec. 2. The specification of the objects and subjects of taxation shall not deprive 
the General Assembly of the power to require other subjects or objects to be taxed, 
in such manner as may be consistent with the principles of taxation fixed in this 
constitution. 

(1) Ko provision oflaiois known, exempting school lands from taxation, which 
have reverted on foreclosure of mortgage. Opinion Auditor DfBois, May 7. 1864. 

In order to exempt a school- house from taxation, it should be held by the 
school directors under such title as will give them the right to possess and control 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 103 

First — All lands donated by the United States for school school lands 
purposes, not sold or leased. All public school -houses. All audhomes - 
property of institutions of learning, including the real estate 
on which the institutions are located, not leased by such insti- 
tutions, or otherwise used with a view to profit. 

Second — All church property actually and exclusively used church prop- 
for public worship, when the land (to be of reasonable size for erty " 
the location of the church building) is owned by tho congrega- 
tion. 

Third — All lands used exclusively as graveyards or grounds Graveyards. 
for burying the dead. 

Fourth — All unentered government lands; all public build- Government 
ings or structures of whatsoever kind, and the contents thereof, property. 
and the land on which the same are located, belonging to the 
United States. 

it at all times for the use of the district. Pace v. County Commissioners of Jefferson Co., 
20 111. R, 644. 

In regard to houses used for public worship, the intent of the law 
exemptiugthem is, that they shall be used for sacred purposes and not otherwise. 
That part so used may be exempt, and portions otherwise used may be taxed. First 
21. E. Church, etc., v. City of Chicago, 26 111. R., 487. 

Church property may be assessed for special purposes, though not liable 
for ordinary taxes. City of Ottawa v. Fisher et at., 20 111. R., 423 ; The Trustees of Vns 
Illinois and Michigan Canal v. The City of Chicago, 12 111. R., 403. 

A parsonage owned by a church is not exempt from taxation. Opinion Auditor 
Hiker, April 11. 1867; Lippincott, December 22, 1S69 ; St. Peter's Churchy. Cbmmic- 
siuners Scott Co., 12 Minn. R., 39-3. 

If a seminary is established as such by law, the lot on which it stands is not tax- 
able. But if a private school, although called a "seminary," conducted for private 
gain or profit, it is not exempt from taxation. Opinion Auditor Mixer. February 
14. 1868. 

Horses and carriages carrying the mail of the United States, if owned by the 
government, are exempt from taxatioa, but not so if owned by individuals. Opinion. 
Auditor Mixer, June 27, 1867. 

It is only the property owned by the State that is exempt from taxation, not that in. 
which it may ultimately share in avails. Iiyan v. Gallatin County, 14 111. R., 83. 

The exemption of swamp lands from taxation ceases when sold by the 
county, and it is presumed that such lands reverting on foreclosure of mortgage 
would not be exempt under the law. Opinion Auditor Mixer. May 13, 1867. 

TJie new constitution concerning this and other subjects of exemption-, 
declares, Art. 9, Sec. 3. The property of the State, counties and other municipal cor- 
porations, both real and personal, and such other property as may be used exclusively 
for agricultural and horticultural societies, for schools, religious, cemetery and 
charitable purposes, may be exempted from taxation; but such exemption shall be 
only by general law. In the assessment of real estate, incumbered by public ease- 
ment, any depreciation occasioned by such easement, may be deducted in the valu- 
ation of such property. 

Corn, wheat, oats and other field products, and beef, pork, and other articles of 
provisions, are not exempt from taxation. Opinion Auditor Mixer. January 7, 1S67. 

It is within the constitutional power of the legislature to exempt property from 
taxation, or to commute the general rate for a fixed sum. Illinois Central Railroad 
Co. v. Coufitu of McLean, 17 111. R.. 293. But not so i n regard to persons or class of persons. 
Hurisackerct al. v. Wright et al, 30 111. R., 146; O' Kane v. Treat etal., 25 111. R., 561. 

The assessment of public taxes, or special assessment for public improvements 
upon the public property of the State, county or municipal corporations, is a mere 
question of policV. The power exists to make it bear its share of the one or the other. 
It may be exempt from the one and subjected to the other. Canal Trustees v. CiUi of 
Chicaiy), 12 111. R., 405; lioss v. Mayor of New York, 3 Wend. R., 335; cited and sus- 
tained in case of Higgins v. City of Chicago, 18 111. R., 280. 

JLaws exempting property from taxation, being in derogation of equal 
rights should be construed strictly; therefore, held, that property mentioned as 
exempt is only exempt from taxation when used exclusively for the purposes men- 
tioned. If used for other purposes, it is liable to taxation, no matter Avhat purposes 
the proceeds are in future to be applied. Cincinnati College v. State, 19 Ohio R., 110. 



104 



REVENUE. 



[DIV IV. 



State property 

Poor houses. 

Swamp lands. 

Public build- 
ings. 



Charitable in- 
stitutions, pub- 
lic libraries. 



Fire engines, 
etc. 



Market houses, 



Water works, 
etc. 



Agricultural 
society prop- 
erty, etc. 



Fifth — All property of every kind belonging to the State 
of Illinois. 

Sixth — All property belonging to any county, town, village 
or city, used exclusively for the maintenance of the poor. All 
swamp or overflowed lands belonging to any county, so long as 
the same remain unsold by such county. All public buildings 
belonging to any county, township, city or incorporated town, 
with the ground on which such buildings are erected, not 
exceeding m any case ten acres. 

Seventh — All property of institutions of purely public 
charity, when actually and exclusively used for such charitable 
purposes, not leased or otherwise used with a view to profit, 
and all free public libraries. 

Eighth — All fire engines and other implements used for 
the extinguishment of fires, with the building used exclusively 
for the safe -keeping thereof, and the lot, of reasonable size, on 
which the building is located, when belonging to any city, vil- 
lage or town. 

Ninth — All market -houses, public squares or other publ'ic 
grounds used exclusively for public purposes. All works, 
machinery and fixtures belonging exclusively to any town, 
village or city, and used exclusively for conveying water to 
such town, village or city. 

Tenth — All property which may be used exclusively by 
societies for agricultural, horticultural, mechanical and philo- 
sophical purposes, and not for pecuniary profit. 



RULES FOR VALUING PERSONAL PROPERTY. 

Sec. 3. Personal property shall be valued as follows :(1) 
cash valuation. First — All personal property, except as herein otherwise 
directed, shall be valued at its fair cash value. 



(1) In valuing proprrfij the assessor has no right to discriminate for or against 
any class of property, whether it be bank stock or other property. The only criterion 
known to the law is* the actual money tcorth of the property. Opinion Auditor Miner, 
May 28. September 25, 1868, May 29, iSG7. And this may be on a " greenback" basis, 
so called. Opinion Auditor Miner, May 21, 1866. 

In assessing the value of a railroad for purposes of taxation, the inquiry should be, 
what is the property woith, to be used for the purposes for which it was designed, 
and not for any other purposes to which it might be applied, and In all cases it ts 
proper to consfder what would a prudent man give for the property as a permanent 
investment, with a view to present and future income, and the assessment should be 
at its present and not future value. State of Illinois v. Illinois Central Eailroad Co., 27 
111. R., 70. 

The first cost of propertv is no evidence of its value. C. & X. W. E. R. Co. v. Boone 
County, 44 111. R., 241. 

Choses in action, such as promissory notes, are to be listed at their true value. If 
a note is wholly worthless, it is not to be listed at all; if it is of some value, but less 
than its face, it is to be listed at what it is worth. Exchange Bank Colwihius v. llines, 
3 Ohio State R., 1. 

Under a law providing " for taxing all property in this State according to its true 
value," Held, that capital invested in the business of purchasing hogs and slaughter- 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 105 

Second — Every credit, for a sum certain, payable either m Credits 
money or labor, shall be valued at a fair cash value. of the sum 
so payable ; if for any article of property, or for labor, or ser- 
vices of any kind, it shall be valued at the current price of 
such property, labor or service 

Third — Annuities and royalties shall be valued at their Annuities. 
then present total value. 

Fourth — The capital stock of all companies and associa- capital stock — 
tions now or hereafter created under the laws of this State, how valued - 
shall be so valued by the State board of equalization as to 
ascertain and determine, respectively, the fair cash value of 
such capital stock, including the franchise, over and above the 
assessed value of the tangible property of such company or 
association. Said board shall adopt such rules and principles 
for ascertaining the fair cash value of such capital stock as to 
it may seem equitable and just ; and such rules and principles, 
when so adopted, if not inconsistent with this act, shall be as 
binding and of the same effect as if contained in this act, sub- 
ject, however, to such change, alteration or amendment as may 
be found, from time to time, to be necessary by said board : 
Provided, that in all cases where the tangible property or Proviso. 
capital stock of any company or association is assessed under 
this act, the shares of capital stock of any such company or 
association shall not be assessed and taxed in this State. This 
clause shall not apply to the capital stock or shares of capital 
stock of banks organized under the general banking laws of this 
State. 

RULES FOR VALUING REAL ESTATE. 

Sec. 4. Real property shall be valued as follows: Real estate. 

First — Each tract or lot of real property shall be valued at Jg n f of vaiua - 
its fair cash value, estimated at the price it would bring at a Fair cash value. 
fair, voluntary sale. 

Second — Taxable leasehold estates shall be valued at such Leasehold 
a price as they would bring at a fair, voluntary sale for cash. 

Third — When a building or structure is located on the Buildings on 
right of way of any canal, railroad or other company leased or canal or rail- 
granted for a term of years to another, the same shall be 
valued at such a price as such building or structure and lease 
or grant would sell at a fair, voluntary sale for cash. 

ir.g and packing pork for sale or transportation, is subject to taxation. Jackson v. 
15 Ohio R., 652. 
One portion of the tax-payers of a county cannot be required to pay more 
taxes in proportion to its value than another portion in the same county, and" a dis- 
crimination cannot be made in this regard against the property of a railroad com- 
pany, and altliough property is assessed at a low rate, still uniformity must be 
observed. C. & N. W. li. E. Co. v. Boone County, 4i 111. K., 240. 



106 REVENUE. [DIV. IV 



Mineral lands. Fourth — In valuing any real property on which there is 
a coal or other mine, or stone or other quarry, the same shall 
be valued at such a price as such property, including the mine 
or quarry, would sell at a fair, voluntary sale for cash. 

PERSONAL PROPERTY WHEN LISTED. 

rcrsonai prop- Sec. 5. Personal property shall be listed between the first 
iSedT wheu day of May and the first day of July of each year, when re- 
quired by the assessor, with reference to the quantity held or 
owned on the first day of May, in the year for which the 
property is required to be listed. Personal property pur- 
chased or acquired on the first day of May shall be listed by 
or for the person purchasing or acquiring it. 

WHO SHALL LIST AND WHAT LISTED. 

aud°what listed ^ EC * ^* P ersona l property shall be listed in the manner fol- 
lowing : 

rersonsoffuii First — Every person of full age and sound mind, being a 

r gC '-d tC V resident of this State, shall list all his moneys, credits, bonds, 
or stocks, shares of stock of joint stock or other companies 
(when the capital stock of such company is not assessed in 

Money, bonds, ^jg gtate), moneys loaned or invested, annuities, franchises, 
royalties, and other personal property. 

Money, etc., in- Second — He shall also list all moneys and other personal 
property invested, loaned or otherwise controlled by him as 
the agent or attorney, or on account of any other person or 
persons, company or corporation whatsoever, and all moneys 
deposited, subject to his order, check or draft, and credits due 
from or owing by any person or persons, body corporate or 
politic. 

Property of mi- Third — The property of a minor child shall be listed by 
his guardian, if he have no guardian, then by the father, if 
living ; if not, by the mother, if living ; and if neither father 
or mother be living, by the person having such property in 
charge. 

of idiot or lun- Fourth — The property of an idiot or lunatic, by his con- 
servator ; or if he has no conservator, by the person having 
charge of such property. 

or wife. Fifth — The property of a wife, by her husband, if of 

sound mind ; if not, by herself. 

Trust property. Sixth — The property of a person for whose benefit it is 
held in trust, by the trustee ; of the estate of a deceased per- 
son, by the executor or administrator. 

of corporation Seventh — The property of corporations whose assets are 
in the hands of receivers, by such receivers. 



DIV. IT.] ASSESSMENT AND COLLECTION OF TAXES. 107 

Eighth — The property of a body politic or corporate, by 
the president, or proper agent or officer thereof. 

Ninth — The property of a firm or company, by a partner of a firm, 
or agent thereof. 

Tenth — The property of manufacturers and others in the of property in 
hands of agent, by and in the name of such agent, as mer- haudso agouU 
chandise. 

WHERE LISTED AND ASSESSED, AND WHAT HELD TO BE PER- 
SONAL PROPERTY MANNER OF LISTING.(l) 

Sec. T. Personal property, except such as is required in personal prop- 
this act to be listed and assessed otherwise, shall be listed and erty - 
assessed in the county, town, city, village or district where the 
owner resides. 

(1) Personal property must be listed for taxation, in the county, town or dis- 
trict where the owner resides, notwithstanding the property itself may remain and be 
used in another county, as in case of farming implements, stock, etc., upon a farm. 
King el al. v. McDrew el al., 31 111. R., 418. Yet if permanently located elsewhere, it may 
be listed there. Mills, executor, etc., v. Thornton et al., 26 111. R., 300. 

A person cannot choose where his property shall be taxed ; this is fixed by law. 
Opinion Auditor Miner, August 17, 1867. 

iit regard to taxation in cities and incorporated towns, the place and manner 
of taxation will be regulated by their charters. Opinion Auditor Miner, August 17, 
1867 ; July 22. 1867; Wilkie v. City of Pekin, 19 111. R., 160. 

It is not necessary that a person to be amenable to the taxing power, should be a 
citizen c-f, or domiciled within the State; but he must be a resident. There is a dis- 
tinction in law between residence and domicil; and a person may have the former in 
one state and the latter in another. Nor is the liability of taxation placed on the 
ground of a citizenship Tazewell County v. Davenport, 40 111. R., 197. 

Apcrson resieing in this State, acting as agent for a non-resident, is liable to 
tax as agent on securities, taken for money loaned. Opinion Auditor Miner, July 
25, 1867: Tazewell County v. Davenport,!® 111. R., 197. 

Where three executors of an estate reside in the same township — two of them 
within the corporate limits of a village, the other without such limits — and the three 
have possession in law of the taxable moneys, credits, bonds and stocks of the estate, 
the same must, in view of the equities and analogies of the statute (which does not 
expressly provide for such a case), be entered for taxation — one-third as of the place 
of residence of each executor. And this principle would be applicable to a case 
where the executors resided in different townships. State v. Mathews, 10 Ohio State R. 

Merchandise is to be taxed at the place of business of the merchant, which may or 
may not be his residence. Opinion Auditor Miner, August 17, 1868. And where'the 
same party has goods in different localities, carrying on business there, the property 
should be listed where it is located. Opinion Auditor Miner, July 16, 1867. 

The stock or interest of a vessel, boat or ship, navigating the waters of this 
State, is taxable where the owner resides, and it is thought that no question concern- 
ing the taxation can arise which could be carried into the United States courts. 
Opinion Auditor Miner, July 20, 1867. The place or situs of a vessel is the place of 
its registration and port from which it regularly departs and returns. Wilkey v. City 
of Pekin, 19 111. R., 160. 

A. lease of lands belonging to the State, including canal lands, etc.. with the im- 
provements, may be taxed, and the interest of the tenant sold. LaSalle Manufactur- 
ing Co. v. The City of Ottaiva, 16 111. R., 418. 

Leasehold property, belonging to the State, should be valued in the assessment, at 
the price the assessor believes can be obtained for the leasehold, and this should 
include all rights and privileges belonging or in anywise pertaining thereto. Opin. 
Auditor Miner, July 14. 1868. 

The laiv requires that persons owning personal property shall make, sign 
and deliver to the assessor a statement of their property subject to taxation. Town 
of Charlestown v. McCrory, 36 111. R., 4f>6. 

The fact that property subject to taxation has not been listed, although it improp- 
erly increases the burden of taxation upon the property that is listed, does not render 
the tax wholly void, or authorize the interference of a court of equity. Exchange 
Bank Columbus v. Hines, 3 Ohio State R., 1. 

The assessor has no right to double the assessed value of property belonging to the 
estate of a deceased person on account of any act of the executor. Leper v. Pulsifer, 
37 111. R., 110. 



108 REVENUE. [DIV. IV. 

what held The capital stock and franchises of corporations and per- 

i&ted a andM- en sons > except as may be otherwise provided, shall be listed and 

sessed. taxed in the county, town, district, city or village where the 

principal office or place of business of such corporation or per- 
son is located in this State. If there be no principal office or 
place of business in this State, then at the place in this State, 
where any such corporation or person transacts business. 

Live stock and Sec. 8. When the owner of live stock or other personal 

arm proper y. p r0 p Cr j.y connected with a farm does not reside thereon, the 
same shall be listed and assessed in the town or district where 
the farm is situated : Provided, If the farm is situated in 
several towns or districts, it shall be listed and assessed in the 
town or district in which the principal place of business on 
such farm shall be. 

Property in Sec. 9. The property of manufacturers and others, in the 

an s o agen . ] ianc j s f a g en ts, shall be listed and assessed at the place where 
the business of such agent is carried on. 

improvements Sec. 10. When real estate is exempt in the hands of the 

eSempt. es a e holder of the fee, and the same is contracted to be sold, the 
amount paid thereon by the purchaser, with the enhanced 
value of the investment and improvement thereon until the fee 
is conveyed, shall be held to be personal property, and listed 
and assessed as such, in the place where the land is situated. 

Personal prop- Sec. 11. Personal property, in transitu, shall be listed and 
"' assessed in the county, town, city or district where the owner 

Proviso. resides : Provided, If it is intended for a business, it shall be 

listed and assessed at the place where the property of such 
business is required to be listed. 

Nurseries. Sec. 12. The stock of nuseries, growing or otherwise, in 

the hands of nurserymen, shall be listed and assessed as mer- 
chandise. 

Banks, brokers, Sec. 13. The personal property of banks or bankers, brok- 
ers, stock-jobbers, insurance companies, hotels, livery stables, 
saloons, eating houses, merchants and manufacturers, ferries, 
mining companies, and companies not specially provided for in 
this act, shall be listed and assessed in the county, town, city, 
village or district where their business is carried on, except 
such property as shall be liable to assessment elsewhere, in the 
hands of agents. All persons, companies and corporations in 

steamboats,etc. this state owning steamboats, sailing vessels, wharf- boats, 

When a party makes out and delivers to the assessor a list of his taxable property, 
which is accepted without question, that officer has no power afterward, of his own 
motion, to alter it without first giving the party assessed notice. If he does a court 
of equity will grant relief by injunction. Clcghorn v. Posllewaite et al., 43 111. R., 431. 

The assessor is to value real estate himself, and need not give notice thereof to the 
person assessed. Opinion Auditor Mines, May 6, 1867. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 109 

barges and other water craft, shall be required to list the same 
for assessment and taxation in the county, town, city, village 
or district in which the same may belong or be enrolled, reg- 
istered or licensed, or kept, when not enrolled, registered or 
licensed. 

Sec. 14. The personal property of gas and coke companies, Gas and coke 
except the pipes laid down, shall be listed and assessed in the com P ames - 
town, village, district or city where the principal works are 
located. Gas mains and pipes, laid in roads, streets or alleys, Pipes, 
shall be held to be personal property, and listed and assessed 
as such, in the town, district, village or city where the same 
are laid. 

Sec. 15. The personal property of street railroad, plank street railways, 
road, gravel road, turnpike or bridge companies, shall be listed p an roa s ' etc 
and assessed in the county, town, district, village or city where 
the principal place of business is located. The track, road or 
bridge shall be held to be personal property, and listed and 
assessed as such, in the town, district, village or city where the 
same is located or laid. 

Sec. 16. The horses, stages and other personal property of stage compa- 
stage companies or persons operating stage lines, shall be listed mes * 
and assessed in the county, town, city or district where they 
are usually kept. 

Sec. 17. The personal property of express or transporta- Express com- 
tion companies shall be listed and assessed in the county, town, pames - 
district, village or city where the same is usually kept 

Sec. 18. No consignee shall be required to list, for taxa- consignee of 
tion, the value of any property consigned to him for the sole property * 
purpose of being stored or forwarded, except to the extent of 
his interest in such property. 

Sec. 19. Persons required to list property on behalf of Persons listing 
others, shall list it in the same place in which they are others 1 . y ° 
required to list their own ; but they shall list it seperately from 
their own, specifying in each case the name of the person, 
estate, company or corporation to whom it belongs. 

Sec. 20. Persons, for themselves or others, holding bonds Accrued inter- 
or stocks of any kind, the principal of which bonds or stocks Imptedlonds. 
has been or may hereafter be exempted from taxation, shall 
list the amount of accrued interest en such bonds, without 
regard to the time when the same is to be paid. 

Sec. 21. Where a deed for real estate is held for the pay- Money secured 
ment of a sum of money, such sum, so secured, shall be held y rca estate - 
to be personal property, and shall be listed and assessed as 
credits. 

Sec. 22. The owner of personal property removing from 



110 REVENUE. [DIV. IV. 

Owner of prop- one county, town, city, village or district, to another, between 
eity removing. the first day of Maj and the firgt day f July, . shall be 

assessed in either, in which he is first called upon by the 
assessor. The owner of personal property moving into this 
State from another State, between the first day of May and 
the first day of July, shall list the property owned by him on 
the first day of May of such year, in the county, town, city, 
proviso. village or district in which he resides : Provided, If such per- 

son has been assessed, and can make it appear to the assessor 
that he is held for tax of the current year on the property, in 
another State, county, town, city, or district, he shall not be 
again assessed for said year. 
Questions Sec. 23. In all questions that may arise under this act as 

inSme counfy tne proper place to list personal property, or where the same 
bvcountv ded cannot De listed as stated in this act, if between several places 
board— if in the same county, the place for listing and assessing shall be 
ferent e counties, determined and fixed by the county board ; and when between 
by auditor. different counties or places in different counties, by the audi- 
tor of public accounts ; and when fixed in either case, shall be 
as binding as if fixed by this act. 
schedule of Sec. 24. Persons required to list personal property, shall 

persona prop- ma k e Qu ^ and de ii ver f the assessor, at the time required, a 
schedule of the numbers, amounts, quantity and quality of all 
personal property in their possession, or under their control, 
required to be listed for taxation by them. It shall be the 
duty of the assessor to determine and fix the fair cash value of 
all items of personal property. 

FORM OF SCHEDULE. 

Form of sched- Sec. 25. Such schedule, when completed by the assessor, 
in extending in a separate column the value of such property, 
shall truly and distinctly set forth : 

First — The number of horses of all ages, and the value 
thereof. 

Second — The number of cattle of all ages, and the value 
thereof. 

Third — The number of mules and asses of all ages, and 
the value thereof. 

Fourth — The number of sheep of all ages, and the value 
thereof. 

Fifth — The number of hogs of all ages, and the value 
thereof. 

Sixth — Every steam engine, including boilers, and the 
value thereof. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. Ill 

Seventh — Every fire or burglar-proof safe, and the value 
thereof. 

Eighth — Every billiard, pigeon-hole, bagatelle or other 
similar tables, and the value thereof. 

Ninth — Every carriage and wagon, of whatsoever kind, 
and the value thereof. 

Tenth — Every watch and clock, and the value thereof. 

Eleventh — Every sewing or knitting machine, and the value 
thereof. 

Twelfth — Every piano -forte, and the value thereof. 

Thirteenth — Every melodeon and organ, and the value 
thereof. 

Fourteenth — Every franchise, the description and the value 
thereof. 

Fifteenth — Every annuity and royalty, the description and 
the value thereof. 

Sixteenth — Every patent right, the description and the 
value thereof. 

Seventeenth — Every steamboat, sailing vessel, wharf-boat, 
barge or other water craft, and the value thereof. 

Eighteenth — The value of merchandise on hand. 

Nineteenth — The value of material and manufactured arti- 
cles on hand. 

Twentieth — The value of manufacturers' tools, implements 
and- machinery (other than boilers and engines, which shall 
be listed as such). 

Twenty -first — The value of agricultural tools, implements 
and machinery. 

Twenty -second — The value of gold or silver plate ana 
plated ware. 

Twenty -third — The value of diamonds and jewelry. 

Twenty -fourth — The amount of moneys of bank, banker, 
broker or stock-jobber. 

Twenty -fifth — The amount of credits of bank, banker, 
broker or stock-jobber. 

Twenty -sixth — The amount of moneys other than of bank, 
banker, broker or stock-jobber. 

Twenty -seventh — The amount of credits other than of 
bank, banker, broker or stock -jobber. 

Twenty -eighth — The amount and value of bonds or stocks. 

Twenty -ninth — The amount and value of shares of capi- 
tal stock of companies and associations not incorporated by 
the laws of this State. 

Thirtieth — The value of property such person is required 
to list as a pawnbroker. 



112 



REVENUE. 



[DIV. IV 



Assessor may 

administor 

oath. 



Thirty -first — The value of property of companies and cor- 
porations other than property hereinbefore enumerated. 

Thirty - second — The value of bridge property. 

Thirty-third — The value of property of saloons and eat- 
ing-houses. 

Thirty -fourth — The value of household or office furniture 
and property. 

Thirty -fifth — The value of investments in real estate and 
improvements thereon, required to be listed under this act. 

Thirty -sixth — The value of all other property required to 
be listed. 

Sec. 26. That whenever the assessor shall be of opinion 
that the person listing property for himself or for any other per- 
son, company or corporation, has not -made a full, fair and 
complete schedule of such property, he may examine such per- 
son under oath, in regard to the amount of the property he is 
required to schedule, and for that purpose he is authorized to 
administer oaths, and if such person shall refuse to answer, 
under oath, and a full discovery make, the assessor may list 
the property of such person, or his principal, according to his 
best judgment and information. If the person so examined 
shall swear falsely, he shall be guilty of perjury, and pun 
ished accordinslv. 



rules eor listing credits. 

Rules for list- ^ EC - 27. In making up the amount of credits which any 
dSucUoifaT- P erson * s required to list for himself or for any other 
lowed for bona person, company or corporation, he shall be entitled to deduct 
from the gross amount of credits, the amount of all bona fide 
debts owing by such person, company or corporation, to any 
other person, company or corporation, or a consideration 
received, but no acknowledgment of indebtedness not founded 
on actual consideration, believed when received to have been 
adequate, and no such acknowledgment made for the purpose 
of being so deducted, shall be considered a debt within the 
meaning of this section ; and so much only of any liability, 
as surety for others, shall be deducted as the person making 
out the statement believes he is legally and equitably bound, 
and will be compelled to pay on account of the inability or 
insolvency of the principal debtor ; and if there are other sure- 
ties who are able to contribute, then only so much as the 
surety in whose behalf the statement is made will be bound to 
Proviso. contribute : Provided, that nothing in this section shall be 

so construed as to apply to any bank, company or corporation 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 113 

exercising banking powers or privileges, or to authorize any 
deductions allowed by this section from the value of any other 
item of taxation than credits. 

Sec. 28. No person, company or corporation shall be entitled Deductions, 
to any deduction from the amount of any bond, stocks or money 
loaned, ; or on account of any bond, note or obligation of any 
kind, given to any insurance company, on account of premiums 
or policies, nor on account of any unpaid subscription to any 
religious, literary, scientific or charitable institution or society, 
nor on account of any subscription to or installment payable 
on the capital stock of any company, whether incorporated or 
unincorporated. 

Sec. 29. In all cases where deductions are claimed from Deductions to 
credits, the assessor shall require that such deductions be veri- o£ t h ertlfied by 
fied by the oath of the person, officer or agent claiming the 
same, and any such person, officer or agent, knowingly or 
willfully making a fraudulent statement of such deductions 
claimed, so verified by affidavit, shall be liable to a fine of not 
less than one hundred dollars, nor more than one thousand 
dollars, in addition to all damages sustained by the State, 
county, or other local corporations, to be recovered in any 
proper form of action in any court of competent jurisdiction, 
in the name of the People of the State of Illinois. Such fines, 
when recovered, shall be paid into the country treasury, and 
the damages, when collected, shall be paid to whom they 
belong. The assessor shall preserve the statement of cleduc- dS[uct?ons° f 
tions thus claimed, so verified by affidavit, and when he returns preserved, 
the assessment books, shall file the same with the county clerk, 
to be kept on file in his office for two years, and at the expi- 
ration of such time, said statement of deductions shall be 
destroyed by said clerk; but in the meantime shall be subject 
only to the inspection of the officers charged with the execution 
of this law. 

RULES FOE, LISTING AND VALUING THE PROPERTY AND BUSI- 
NESS OF BANKS, BANKERS, BROKERS AND STOCK-JOBBERS. 

Sec. 30. Every bank (other than a national bank), banker, property of 
broker or stock-jobber, shall, at the time fixed by this act of £ t a c nks > bankers > 
listing personal property, make out and furnish the assessor a 
sworn statement, showing : 

First — The amount of money on hand or in transit. 

Second — The amount of funds in the hands of other banks, 
bankers, brokers, or others, subject to draft. 

Third — The amount of checks, or other cash items, the 



Ill REVENUE. [DIV. IV. 

amount thereof not being included in either of the preceding 
items. 

Fourth — The amount of bills receivable, discounted or 
purchased, and other credits due or to become due, includino* 
accounts receivable, and interest accrued but not due, and in- 
terest due and unpaid. 

Fifth — The amount of bonds and stocks of every kind, 
and shares of capital stock of joint stock or other companies 
or corporations, held as an investment, or any way represent- 
ing assets. 

Sixth — All other property appertaining to said business, 
other than real estate (which real estate shall be listed and as- 
sessed as other real estate is listed and assessed under this act.) 

Seventh — The amount of all deposits made with them by 
other parties. 

Fighth — The amount of all accounts payable, other than 
current deposit accounts. 

Ninth — The amount of bonds or other securities exempt 
by law from taxation, specifying the amount and kind of each, 
the same being included in the preceding fifth item. 

The aggregate amount of the first, second and third items 
of said statement shall be listed as moneys. The amount of 
the sixth item shall be listed the same as other similar personal 
property is listed under this act. The aggregate amount of 
the seventh and eighth items shall be deducted from the aggre- 
gate amount of the fourth item of said statement, and the 
amount of the remainder, if any, shall be listed as credits. 
The aggregate amount of the ninth item shall be deducted 
from the aggregate amount of the fifth item of such statement, 
and the remainder shall be listed as bonds or stocks. 

PAWN -BROKER. 

Pawnbroker— Sec. 31. Every person or company engaged in the business 
of his returns. f receiving property in pledge or as security for money or 
other thing advanced to the pawner or pledger, shall be held 
to be a pawnbroker, and shall, at the time required by this act, 
return, under oath, the value of all property pledged and held by 
him, as a pawn -broker, on hand on the first day of May, annu- 
ally, and taxes shall be charged upon the fair cash value of such 
property, to such pawn - broker, the same as other property. \ 

LISTING CAPITAL STOCK OF CORPORATIONS AND FRANCHISES 
OF PERSONS. 

Listing the Sec. 32. Banking, bridge, express, ferry, gravel road, gas, 

corporations. ° f insurance, manufacturing, mining, plank road, savings bank, 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 115 

stage, steam boat, street railroad, transportation, turnpike, and 
all other companies and associations incorporated under the 
laws of this State (other than banks organized under the general 
banking laws of this State), shall, in addition to the other prop- 
erty required by this act to be listed, make out and deliver to the 
assessor a sworn statement of the amount of its capital stock, 
setting forth particularly: 

First — The name and location of the company or association. 

Second — The amount of capital stock authorized, and the 
number of shares into w r hich such capital stock is divided. 

Third — The amount of capital stock paid up. 

Fourth — The market value, or if no market value, then the 
actual value of the shares of stock. 

Fifth — The total amount of all indebtedness except the 
indebtedness for current expenses — excluding from such ex- 
penses A\q amount paid for the purchase or improvement of 
property. 

Sixth — The assessed valuation of all its tangible property, g-xuih schedule 

Such schedule shall be made in conformity to such instruc- thefnsSSions 
tion and forms as may be prescribed by the auditor of public of the auditor 
accounts. In all cases of failure or refusal of any person, counts. 
officer, company or association to make such return or state- 
ment, it shall be the duty of the assessor to make such return 
or statement from the best information which he can obtain. 

Sec. 33. Such statements shall be scheduled by the assessor , statements to 
and such schedule, with the statements so scheduled, shall be £° ^assessor 
returned by the assessor to the county clerk. Said clerk shall, 
at the time he makes his report of assessment, forward to the 
auditor all such schedules and statements so returned to him. 
The auditor shall, annually, on the meeting of the State board 
of equalization, lay bofore said board the schedules and state- 
ments herein required to be returned to him ; and said board 
shall value and assess the capital stock of such companies or 
associations, in the manner provided in this act. 

Sec. 34. Every person owning or using a franchise granted Franchises to 

i i o ,i • cii . i n ^ -it,- , i • i & be listed as per- 

by any law ot this fetate, shall, in addition to his other prop-sonai property. 

erty, list the same as personal property, giving the total value 

thereof. 

STATE AND NATIONAL bSnKS.(I) 

Sec. 35. The stockholders in every bank located within this state and na- 
Statc, whether such bank has been organized under the bank- lional banks * 

(1) A state tax against a shareholder of a national bank, for any year, under the law- 
then in force, andT'voluntarily paid, cannot be recovered back, because the assess- 
ment under the law, was illegal ; the property being subject, in some mode, to taxa- 



REVENUE. [DIV. IV. 



i 



ing laws of this State or of the United States, shall be assessed 
and taxed on the value of their shares of stocks therein, in the 
county, town, district, village or city where such bank or bank- 
ing association is located, and not elsewhere, whether such 
stockholders reside in such place or not. Such shares shall be 
listed and assessed with regard to the ownership and value 
thereof, as they existed on the first day of May, annually, sub- 
ject, however, to the restriction that taxation of such share 
shall not be at a greater rate than is assessed upon any other 
moneyed capital in the hands of individual citizens of this 
State, in the county, town, district, village or city where such 
bank is located. The shares of capital stock of national banks 
not located in this State, held in this State, shall not be 
required to be listed under the provisions of this act. 
List of stock- Sec. 36. In each such bank there shall be kept at all times 
holders. a f u ^ an( j corre ct list of the names and residences of ks stock- 

holders, and of the number of shares held by each ; which list 
shall be subject to the inspection of the officers authorized to 
assess property for taxation ; and it shall be the duty of the 
assessor to ascertain and report to the county clerk a correct 
list of the names and residences of all stockholders in any such 
bank, with the number and assessed value of all such shares 
held by each stockholder, 
county clerk Sec. 37. The county clerk, to whom such returns are made, 
uationof erval " sna ^ en ^ er the valuation of such shares in the tax lists, in the 
shares, names of the respective owners of the same, and shall compute 

and extend taxes thereon the same as against the valuation of 
other property in the same locality. 
Tax on shares Sec. 38. The collector of taxes, and the officer or officers 
shall be a hen. au tl 10r i ze d to receive taxes from the collector, may, all or either 
cf them, have an action to collect the tax assessed on any share 
or shares of bank stock from the avails of the sale of such share 
or shares ; and the tax against such share or shares shall be 
and remain a lien thereon till the payment of said> tax. 

tion. People ex rel. v. Miner, 46 111. R., 374 ; Van Allen v. The Assessors, 3 Wallace, 573 ; 
Bradley v. State of Illinois, 4 Wallace, R., 457. 

Whether the shares of national bank stock are listed for taxation by the individ- 
ual owners, or the capital stock is listed by the bank, a similar valuation and a like 
burden are imposed, and in whichever mode the assessment is made, there is no 
wrong perpetrated and no injustice done. Board of Supervisors of Stephenson Co. v. 
Manny, 54 111., 160. * 

In submitting a plan for banking to the people, it was not intended to release any 
legislative power necessary for revenue purposes. Bank of Republic v. County of 
Hamilton, 21 111. R., 54. 

The assessors will ascertain the ownership, number and value of all such shares 
in the stock of banks located in their respective counties and towns, and return the 
same as required by this act, being governed by all the rules of valuation and regu- 
lations in other respects provided by law as to the assessment of other property not 
made inapplicable by the terms of this act, and the clerks will extend taxes thereon, 
and collectors will make collections iu accordance with the general revenue laws 
and the provisions of this act. Circular Auditor Miner, July 1, 1867. 



MV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 117 

Sec. 00. For the purpose of collecting such taxes, it shall officers may 
be the duty of every such bank, or the managing officer or offi- JJ^nds on 1 " 
cers thereof, to retain so much of any dividend or dividends ^ares to pay 
belonging to such stockholders as shall be necessary to pay 
any taxes levied upon their shares of stock, respectively, until 
it shall be made to appear to such bank or its officers that 
such taxes have been paid ; and any officer of any such bank 
who shall pay over or authorize the paying over of any such 
dividend or dividends, or any portion thereof, contrary to the 
provisions of this section, shall thereby become liable for such 
tax ; and if the said tax shall not be paid, the collector of 
taxes where said bank is located shall sell said share or shares 
to pay the same, like other personal property. And in case 
of sale the provision of law in regard to the transfer of stock 
when sold on execution, shall apply to such sale. 

MANNER OF LISTING AND VALUING THE PROPERTY OF 
RAILROADS. 

Sec. 40. Every person, company or corporation owning, Railroad prop- 
operating or constructing a railroad in this State, shall return uSand^isted! 
sworn lists or schedules of the taxable property of such rail- 
road, as hereinafter provided. Such property shall be listed 
and assessed with reference to the amount, kind and value on 
the first day of May of the year in which it is listed. (1) 

Sec. 41. They shall, in the month of May of the year schedule of 
eighteen hundred and seventy -three, and at the same time in erty— W hen P " 
each year thereafter when required, make out and file with the ^ade, 
county clerks of the respective counties in which the railroad 
may be located, a statement or schedule showing the property 
held for right of way, and the length of the main, and all side 
and second tracks and turnouts in such county, and in each 
city, town and village in the county, through or into which 
the road may run, and describing each tract of land other 
than a city, town or village lot, through which the road may 
run, in accordance with the United States surveys, giving the 

(1) The road over which a company occasionally runs its trains under a mere ease- 
ment or a license is not any part of its main track, so as to subject it to assessment; 
for taxation in that county, and where a county illegally assesses and collects a tax 
upon rolling stock of a railroad company, it not being taxable in such county by 
reason of the company only using another road therein under a mere easement, 
the company may bring its action against the county and recover the money back. 
Cool: County v. C. B. and Q. R. B. Co., 35 111. K., 640. 

It is the opinion that ever?/ railroad company is entitled to notice of any 
change by the county authorities in the listing or valuation of property by them 
rendered, and opportunity to offer objection. It is not considered that a change in 
the valuation returned by a company or individual would be binding without such 
notice. Opinion Auditor Miner, March 3, 1866. If proper notice is not given the 
party aggrieved may have remedy in the circuit court. City of Ottawa v. Chicago <fc 
R. I. R. R. Co., 25 III. R., 43. 



118 



REVENUE. 



[DIV. IV. 



New compa- 
nies. 



Right of way," 
held to be real 
estate for the 
purposes of 
taxation, and 
denominated 
"railroad 
track." 



width and length of the strip of land held in each tract, and 
the number of acres thereof. They shall also state the value 
of improvements and stations located on the right of way. 
New companies shall make such statement in May next after 
the location of their roads. When such statement shall have 
been once made, it shall not be necessary to report the descrip- 
tion as hereinbefore required, unless directed so to do by the 
county board ; but the company shall during the month of 
May, annually, report the value of such property, by the 
description set forth in the next section of this act, and note 
all additions or changes in such right of way, as shall have 
occurred. 

Sec. 42. Such right of way, including the superstructures 
of main, side or second track and turnouts, and the stations 
and improvements of the railroad company on such right of 
way, shall be held to be real estate for the purposes of taxa- 
tion, and denominated "railroad track," and shall be so listed 
and valued ; and shall be described in the assessment thereof 
as a strip of land extending on each side of such railroad 
track, and embracing the same, together with all the stations 
and improvements thereon, commencing at a point where such 
railroad track crosses the boundary line in entering the 
county, city, town or village, and extending to the point where 
such track crosses the boundary line leaving such county, city, 
town or village, or to the point of termination in the same, as 
the case may be, containing acres, more or less (insert- 
ing name of county, township, city, town or village boundary 
line of same, and number of acres, and length in feet), and 
when advertised or sold for taxes, no other description shall 
be necessary. 

Sec. 43. The value of the "railroad track," shall be listed 
and taxed in the several counties, towns, villages, districts and 
cities, in the proportion that the length of the main track in 
such county, town, village, district or city bears to the whole 
length of the road in this State, except the value of the side 
or second track, and all turnouts, and all station houses, 
depots, machine shops, or other buildings belonging to the 
road, which shall be taxed in the county, town, village, dis- 
trict or city in which the same are located. 
Roiling stock- Sec. 44. The movable property belonging to a railroad 
company shall be held to be personal property, and denomi- 
nated, for the purpose of taxation, "rolling stock." Every 
person, company or corporation, owning, constructing or 
operating a railroad in this State, shall, in the month of May, 
annually, return a list or schedule, which shall contain a cor- 



" Railroad 
track," how 
listed and 
taxed. 



DIV. IV.]' ASSESSMENT AND COLLECTION OF TAXES. llfl 

rect detailed inventory of all the rolling stock belonging to 
such company, and which shall distinctly set forth the number 
of locomotives of all classes, passenger cars of all classes, 
sleeping and dining cars, express cars, baggage cars, house 
cars, cattle cars, coal cars, platform cars, wrecking cars, pay 
cars, hand cars, and all other kinds of cars. 

Sec. 45. The rolling stock shall be listed and taxed in the Roiling stock, 
several counties, towns, villages, districts and cities, in the pro- where taxed - 
portion that the length of the main track, used or operated in 
such county, town, village, district or city, bears to the whole 
length of the road used or operated by such person, company 
or corporation, whether owned or leased by him or them, in 
whole or in part. Said list or schedule shall set forth the 
number of miles of main track on which said rolling stock is 
used in the State of Illinois, and the number of miles of main 
track on which said rolling stock is used elsewhere. 

Sec. 46. The tools and materials for repairs, and all other Tools and 
personal property of any railroad, except "rolling stock," materials - 
shall be listed and assessed in the county, town, village, dis- 
trict or city, wherever the same may be on the first day of 
May. All real estate, including the stations and other build- 
ings and structures thereon, other than that denominated 
"railroad track," belonging to any railroad, shall be listed as 
lands or lots, as the case may be, in the county, town, village, 
district or city where the same are located. 

Sec. 47. The county clerk shall return to the assessor of Real estau 
the town or district, as. the case may require, a copy of the rJSracT!'' 
schedule or list of the real estate (other than " railroad and persona. 

T)roD6rtv 

track,") and of the personal property (" except rolling stock,") except "rolling 
pertaining to the railroad; and such real and personal prop- st0CK " 
erty shall be assessed by the assessor. Such property shall 
be treated in all respects, in regard to assessment and equaliz- 
ation, the same as other similar property belonging to indi- 
viduals ; except that it shall be treated as property belonging 
to railroads, under the terms "lands," "lots" and "personal 
property." 

Sec. 48. At the same time that the lists or schedules are g worn state- 
hereinbefore required to be returned to the county clerks, the JSadeVo be 
person, company or corporation, running, operating or con- auditor - 
structing any railroad in this State, shall return to the auditor 
of public accounts, sworn statements or schedules, as follows: 

First — Of the property denominated "railroad track," giv- « Railroad 
ing the length of the main and side or second tracks and track -" 
turnouts, and showing the proportions in each county, and the 
total in the State. 



120 REVENUE. [DIV. IV. 

"Roiling Second — The "rolling stock," giving the length of the 

stock." ma j n trac k j n ^^ count y 7 the total in this State, and the 

entire length of the road. 
Number of ties Third — Showing the number of ties in track per mile, the 
weight of iron or steel per yard, used in main and side tracks ; 
what joints or chairs are used in track, the ballasting of road, 
whether graveled or dirt, the number and quality of buildings 
or other structures on "railroad track," the length of time 
iron in track has been used, and the length of time the road 
has been built. 
Aisoasched- Fourth — A statement or schedule showing: 
Amount of 1. The amount of capital stock authorized and the number 

amhoriled^tc. °f shares into which such capital stock is divided. 

2. The amount of capital stock paid up. 

3. The market value, or if no market value, then the actual 
value of the shares of stock. 

4. The total amount of all indebtedness, except for current 
expenses for operating the road. 

5. The total listed valuation of all its tangible property in 
this State. 

Such schedule shall be made in conformity to such instruc- 
tions and forms as may be prescribed, by the auditor of public 
accounts, 
conforming to Sec. 49. If any person, company or corporation, owning, 
tionsof r Si C e operating or constructing any railroad, shall neglect to return 
auditor, \ +i ie county clerks the statements or schedules required to 

be returned to them, the property so to be returned, and 
assessed by the assessor, shall be listed and assessed as other 
raake T return to property. In case of failure to make returns to the auditor, 
auditor. as hereinbefore provided, the auditor, with the assistance of 

the county clerks and assessors, when he shall require such 
assistance, shall ascertain the necessary facts and lay the same 
before the State board of equalization. In case of failure to 
make said statements, either to the county clerk or auditor, 
ronaity. such corporation, company or person shall forfeit, as a penalty, 

not less than one thousand nor more than ten thousand dollars 
for each offense, to be recovered in any proper form of action, 
in the name of the People of the State of Illinois, and paid 
into the State treasury. 
Auditor shall Sec. 50. The auditor shall annually, on the meeting of the 
befo S re h state es State board of equalization, lay before said board the state- 
ization° f equal " ments an{ ^ schedules herein required to be returned to him, 
and said board shall assess such property in the manner here- 
inafter provided. 

Sec. 51. The county clerk shall procure, at the expense of 



DTV. IV.] ASSESSMENT AND COLLECTION OF TANKS. 121 

the county, a record book, properly ruled and headed, in which Record book 

to enter, the railroad property of all kinds, as listed for tax-^JlJ^ 8 ^ 

ation, and shall enter the valuations as assessed, corrected and 

equalized, in the manner provided by this act ; and against 

such assessed, corrected or equalized valuation, as the case 

may require, the county clerk shall extend all the taxes 

thereon, for which said property is liable; and at the proper 

time fixed by this act for delivering tax books to the county 

collector, the clerk shall attach a warrant, under his seal of 

office, and deliver said book to the county collector, upon 

which the said county collector is hereby required to collect 

the taxes therein charged against railroad property, and pay 

over and account for the same in the manner provided in other 

cases. Said book shall be returned by the collector and be 

filed in the office of the county clerk for future use. 

Sec. 52. When any railroad company shall make or record Railroad plats, 
a plat of any contiguous lots or parcels of land belonging to it, uate<L esig " 
the same may be described as designated on such plat. 

TELEGRAPH COMPANIES — RETURN. 

Sec. 53. Any person, company or corporation using or Telegraph 

POTT! TlflTI IPS 

operating a telegraph line in this State, shall, annually, in the their returns, 
month of May, return to the auditor of public accounts a 
schedule or statement, as follows : 

First — The amount of capital stock authorized and the Amount capital 
number of shares into which such capital stock is divided. stock - 

Second — The amount of capital stock paid up. Amount paid 

Third — The market value, or if no market value, then the Market value 
actual value of the shares of stock. of - 

Fourth — The total amount of all indebtedness, except cur- Total indebted- 
rent expenses, for operating the line. ness - 

Fifth — The length of line operated in each county, and Length of line, 
the total in the State. 

Sixth — The total assessed valuation of all its tangible prop- Assessed vaiua- 

.lT- • £3 a j. Oil t i on i n t h is 

erty in this State, state. 

Such schedule shall be made in conformity to such instruc- schedule must 
tions and forms as may be prescribed by the auditor of public form?ty e to con " 
accounts, and with reference to amounts and values on the JJ^xwUcma 
first day of May of the year for which the return is made. 

Sec. 54. The auditor shall annually, on the meeting of the Auditor shall 
State board of equalization, lay before said board the statement ^restate 1116 
or schedule herein required to be returned to him ; and said -^j;^ equa1 ' 
board shall assess the capital stock of such telegraph company, 
in the manner hereinafter provided. The tax charged on the 



122 



REVENUE. 



[DIV. IV. 



capital stock of telegraph companies shall be placed in the 
hands of county collectors, in a book provided for that ^purpose, 
the same as is required for railroad property, and may be 
included in the same book with railroad property. 

Sec. 55. The office furniture and other personal property 
of telegraph companies shall be listed and assessed in the 
county, town, district, village or city where the same is used 
or kept. 



Personal prop- 
erty of tele- 
graph compa- 
nies, -where 
taxed. 



PENALTY. 



Penalty for 
refusing to 
return as 
requ red. 



How collected 



For making 
false return. 



Sec. 56. If any person or corporation shall give a false or 
fraudulent list, schedule or statement, required by this act, or 
shall fail or refuse to deliver to the assessor, when called on 
for that purpose, a list of the taxable personal property which 
he is required to list under this act, he or it shall be liable to 
a penalty of not less than ten dollars nor more than two thou- 
sand, to be recovered in any proper form of action, in the 
name of the People of the State of Illinois, on tile complaint 
of any person. Such fine, when collected, to be paid into the 
county treasury. 

Sec. 57. Whoever shall willfully make -a false list, schedule 
or statement, under oath, shall, in addition to the penalty pro- 
vided in the preceding section, be liable as in the case of 
perjury. 



Real estate, as 
of what time 
listed-^ who 
liable for tax. 



Pi-oviso. 



Purchaser on 
1st May consid 
ered owner on 
'that day. 



Exempt real 
estate, where 



REAL PROPERTY AS OF WHAT TIME LISTED WHO LIABLE 

FOR TAX. 

Sec. 58. All real property in this State, subject to taxation 
under this act, including real estate becoming taxable for the 
first time, shall be listed to the owners thereof, by such owners, 
their agents, county clerks or assessors, or the county board, 
and assessed for the year one thousand eight hundred and 
seventy - three, and yearly thereafter, with reference to the 
amount owned on the first day of May in each year, including 
all property purchased on that day : Provided, that no assess- 
ment of real property shall be considered as illegal by reason 
of the same not being listed or assessed in the name of the 
owner or owners thereof. 

Sec. 59. The owner of property on the first day of May in 
any year, shall be liable for the taxes of that year. The pur- 
chaser of property on the first day of May shall be considered 
as the owner on that day. 

Sec. 60. When real estate, which is exempt from taxation, 
is leased to another whose property is not exempt, and the 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 123 

leasing of which docs not make the real estate taxable, the 
leasehold estate and the appurtenances shall be listed as the 
property of the lessee thereof, or his assignee, as real estate. 

. 61. Government lands entered or located on or prior Government 
to the first day of May, shall be taxable for that year and an 
annually thereafter. School" lands and lots sold shall be tax- 
able in like manner as government lands. Lands and lots 
sold by the trustees of the Illinois and Michigan canal shall be 
taxable from and after the time the full payment therefor is 
made. Illinois Central railroad lands and lots shall be tax- 
able from and after the time the last payment becomes due. 
Swamp lands and lots shall become taxable whenever the swamp lands, 
county sells, conveys, or agrees to convey its title : Provided, proviso con- 
that canal, Illinois Central railroad and swamp lands and lots if™ £ g i?and 
shall be in other respects governed, as to the time of becoming swamp lands, 
taxable, the same as government lands. 

Sec. 62. In all cases where any tract or *ot of land is divided— to be 
divided in parcels so that it cannot be described without surveye(L 
describing it by metes and bounds it shall be the duty of the 
owner to cause such land to be surveyed and platted into lots. 
Such plats shall be certified and recorded. The description 
of real estate in accordance with the number and description 
set forth in the plat, aforesaid, shall be deemed a good and 
valid description of the lot or parcel of land so described. (1) 

Sec. 63. If the owner of any such tract or lot shall refuse If owner 
or neglect to cause such survey to be made within thirty davs J[ esi ^L t j£ m r 

?. • r» i i i ii -iiiin * expense of sur- 

aiter bem?* notified by the county clerk, said clerk shall cause vey shall be 

° t i : added to tax. 

CI) Where'the name of the patentee or present owner is not returned by the assessor 
it will be presumed he was unknown to him. Jackson v. Cummings, 15 111. R., 452, 
2.Gilman R., 450. 

"The term "tract" or " parcel" of land in the law does not necessarily refer to the 
smaller subdivision of the government survey, as 40's. A farm (or tract of land) of 
contiguous territory, owned and occupied by "the same person, would seem to be a. 
separate tract of real property, and such is the construction which the law places 
upon it. Atkvis v. Hinman, 2 Gilm., 111. R., 443 ; Speltman v. Cwrterdus, 12 111. R., 410 ; 
Morley v. Xaylor, 6 Minn. R., 192. The word " lot," as used in the law, must be 
taken" to mean town or city lots, as laid out, platted, numbered and recorded. 6 
Minn. R., 203. And a sale of a number of such lots in a body, or the assessment of a 
number as one tract, although lying contiguous would be void. The reason of the 
distinction between the two cases is obvious. In the first, any number of government 
subdivisions, lying together and owned by the same person, constitute one tract; 
within the meaning of the law. This the law allows; but in case of town lots, each, 
lot must be listed separatelv. Washinqton v. Pratt. 8 Wheat. R., 681 ; Unmin v Inma?T, 
26 Maine R., 228 ; Wiley v. LorUles Lessees, 9 Ohio R., 43. The word ' tract" may also 
refer to such lands within the limits of any town as are not divided into lots. Opin- 
ion Attorney General (Minn.), vol. 1. p. 309. 

The assessment of a tax upon a " part of a lot " or " one acre of a lot," without 
quantity or location in the one case, or without location in the other, is too vague 
and indefinite to authorize a sale of any part or in any place. Massie v. Long, 2 Ohio 
R., 287. 

A certain and definite description of each parcel of land or lot should be given. 
It is necessary to the validity of a tax sale that the land should appear upon the 
duplicate by a pertinent description, and in the name of the rightful owner, if 
known. If not known, however, the land is still taxed, being entered to an 
unknown owner. The tax attaches upon the land, rather than unon the person ; 
not upon the number of entrv or survey, but upon the land included in such entry 
or survey. Douglas v. Danger field, 14 Ohio R., 522 ; Massie v. Long, 2 Ohio R., 287. 



124 



REVENUE. 



[DIV. IV 



How listed 
between coun- 
ties. 



How between 
towns. 



laws 1873. 
Myers' e«l., 

pgf. 204. 



such survey to be made and recorded, and the expense thereof 
shall be added to the tax levied on such real property, and 
when collected, shall be paid on demand, to the persons to 
whom it is due. 

Sec. 64. Any tract of land not exceeding one-sixteenth of 
a section, shall be listed in the County where the greater part 
thereof is situated. When any such tract of land shall be 
situated equally in two counties, the auditor shall determine in 
which county it shall be listed. If there be several tracts 
similarly situated, the auditor shall apportion them equally 
between the counties as nearly as practicable. County clerks 
may have the actual contents of such tracts lying in their 
respective counties surveyed, platted and recorded, in. the 
manner provided for in other cases. 

Sec. 65. The foregoing rules shall apply to lands lying in 
different towns : Provided, the county clerk shall act in said 
cases, instead of the auditor. 

Sec. 66. The county clerk shall make up for the several 
towns or districts in his county, in books to be provided for 
that purpose, the lists of lands and lots to be assessed for 
taxes. When a whole section, half section, quarter section, or 
half quarter section belongs to one owner, it shall, at the request 
of the owner or his agent, be listed as one tract, and when all 
lots in the same block belong to one owner, they shall, at the 
request of the owner or his agent, be listed as a block. When 
several adjoining lots in the same block belong to the same 
owner, they shall, at the request of the owner or his agent, be 
included in one description : Provided, that when any tract or 
parcel of real estate is situated in more than one town, 
or in more than one school, road or other district, the portion 
thereof in each town or district shall be listed separately. 
Said clerk shall enter in the proper column, opposite the 
respective tracts or lots, the names of the owners thereof, so 
far as he shall be able to ascertain the same. Said books shall 
contain columns in which may be shown the number of acres 
or lots improved, and the value thereof; the number of acres 
of lots not improved, and the value thereof; the total value, 
and such other columns as may be required. 

Sec. 67. The books for the assessment of property in coun- 
ties not under township organization, shall be made up by 
congressional townships — but parts or fractional townships, 
less than full townships, may be added to full townships, at 
the discretion of the county board. In counties under town- 
ship organization, said books shall be made to correspond with 
the organized townships. Separate books shall be made for 



Proviso where 
land is situated 
an more than 
one town. 



Book for the 
assessment — 
how made up. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 125 

the assessment of property and the collection of all taxes and 
special assessments thereon, within the corporate limits of 
cities, towns and villages, if ordered by the county board. 

Sec. 08. The county clerk shall cause such lists to be care- such list to be 
fullv compared with the list of taxable real property on file in nToTtaxabie* 1 
his office. property - 

Sec. 69. The county clerk shall cause such assessment Books to be 
books, and all blanks necessary to be used by the assessor in May V ist dby 
the assessment of real and personal property, to be in readi- 
ness for delivery to the assessor on or before the first day of 
May in each year. 

Sec. 70. It shall be the duty of each county, town or dis- Assessor to 
trict assessor to call on the county clerk on or before the first n C r V before kS 
day of May in each year, and receive the necessary books and Ma y lst - 
blanks for the assessment of property, and the failure of any 
assessor so to do shall be deemed sufficient cause to declare his 
office vacant, and for the appointment of a successor. 

Sec. 71. If, after the delivery of such books to the assessor Lands not con- 
in any year, the clerk shall receive an abstract showing the £fj^ m said 
entry of any lands or lots not contained in such books, it shall 
be his duty to furnish a list of the same to the proper assessor 
within five days after such abstract is received. 

APPOINTMENT OF ASSESSORS AND DEPUTY ASSESSORS. 

Sec. 72. Until provision is made by law for the election of Appointment 
the county assessor in counties not under township organiza- Sepu?yTssess- d 
tions, the county board in said counties shall annually appointors, 
some suitable and competent person as county assessor, and 
the person so appointed shall hold his office for one year, sub- 
ject, however, to all the fines, penalties, and removal from 
office, provided for in this act. A vacancy from any cause, in 
the office of assessor, shall be filled by appointment by said 
board. 

Sec. 73. If any assessor, for any cause whatever, shall be Assessor may 
unable to perform the duties required of him within the time &es— ^ow? 11 " 
designated by law, he may, by and with the advice and consent 
of the chairman of the county board, or board of town auditors, 
as the case may require, appoint one or more suitable persons 
to act as deputies to assist him in making the assessment, and 
may designate the district, or portion of the township, county, 
city, village or town in which such deputy or deputies arc 
authorized to list and assess property. Such deputy assessors 
shall make their returns to the assessor. 



126 REVENUE. [DIV. IV. 

OATH AND DUTIES OF ASSESSORS — ASSESSMENT OF REAL AND 
PERSONAL PROPERTY. 

Oath of Sec. 74. Every assessor or deputy assessor, before entering 

upon the duties of his office, shall take and subscribe the oath 
required by the constitution. 
Vacancy— Sec. 75. If any assessor shall fail to take the oath required 

ho>v filled. ky this act, his office shall become vacant ; and in such case, 
or in case the office of assessor is vacant for any cause, the 
county board, or town board, as the case may be, shall fill the 
vacancy by the appointment of some suitable person, who 
shall qualify and discharge the duties of such assessor till the 
office is otherwise filled as required by law. 
Assessors must Sec. 76. Assessors shall, between the first day of May and 
view property. ^ e fi rs t day of July of each year, actually view and deter- 
mine, as nearly as practicable, the fair cash value of each 
tract or lot of land lasted for taxation, and set down in proper 
columns in the book furnished him the value of each tract or 
lot improved, the value of each tract or lot not improved, and 
the total value. He shall also set down in separate columns 
the number of acres in wheat, corn, oats, meadow, and other 
field products, in inclosed pasture, orchards and woodlands, 
whether inclosed or not, in that year. 
Must list and Sec. 77. If the assessor discovers any real property, sub- 
SSfreSSned. ject to taxation, which has not been returned to him by the 

clerk, he shall list and assess such property. 
Manner of Sec. 78. The assessor or his deputy, shall also, between 

assessmg - the first day of May and July, proceed to take a list of the 
taxable personal property in his county, town or district, and 
assess the value thereof in the manner following, to wit: He 
shall call at the office, place of doing business or residence of 
each person required by this act to list property, and list his 
name, and shall require such person to make a correct state- 
ment of his taxable property in accordance with the provisions 
of this act ; and the person listing the property shall enter a 
true and correct statement of such property, in the form pre- 
scribed by this act, which shall be signed and sworn to, to the 
extent required by this act, by the person listing the property, 
and delivered to the assessor; and the assessor shall thereupon 
assess the value of such property, and enter the same in his 
Proviso as to books : Provided, if any property is listed or assessed on or 
property listed after the first day of July, and before the return of -the asses- 
sor's books, the same shall be as legal and binding as if listed 
and assessed before that time. 

Sec. 79. If any person required by this act to list property 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 127 

shall be sick or absent when the assessor calls for a list of his Assessor may 

property, the assessor shall leave at the office, or usual place J e £™ u0tice_ 

of residence or business of such person, a written or printed 

notice requiring such person to make out and leave at the 

place named by said assessor, on or before some convenient 

day named therein, the statement or schedule required by this 

act. The date of leaving such notice, and the name of the 

person required to list the property, shall be carefully noted 

by the assessor in a book to be kept for that purpose. 

Sec. 80. The assessor may examine, on oath, any person May examine 
whom he may suppose to have knowledge of the amount or underoatn - 
value of the personal property which the person so refusing is 
required to list. The assessor may take any proper form of 
action to compel the attendance of a witness. 

Sec. 81. It shall be the duty of assessors, when making shall designate 
assessments of personal property, to designate the number of g}| schoofdi?- 1 
school district or districts in which each person assessed is lia-tnct. 
ble for tax ; which designation shall be made by writing the 
number of the district opposite each assessment, in a column 
provided for that purpose in the assessment book. 

Sec. 82. When the personal property of any person is property in 
assessable in several school districts, the amount in each shall o5Itricts SCh001 
be assessed separately, and the name of the owner placed assessed sepa- 
opposite each amount. 

Seq. 83. In all cases of failure to obtain a statement ofFaiinreto 
personal property, from any cause, it shall be the duty of the 2^;[ n state 
assessor to ascertain the amount and value of such property, 
and assess the same as he believes to be the fair amount and 
value thereof. 

Sec. 84. The assessor, when requested, shall deliver to the Assessor to 
person assessed a copy of the statement of property hereinbe- of statement 
fore required, showing the valuations of the assessor of the 
property so listed ; which copy shall be signed by the assessor. 

Sec. 85. Assessors, in the execution of their duties, shall formVSfr- 
use the forms and pursue the instructions which shall from n ish. ed bv 
time to time, be transmitted to them by the auditor, or that 
may be furnished to them by the county clerk or other officer, 
in pursuance of law. 

REVEIW OP ASSESSMENT BY TOWN BOARD IN COUNTIES UNDER 
TOW'NSHIP ORGANIZATION. 



Sec. 86. In counties under township organization, the "Review of 
assessor, clerk and supervisor of the town, shall meet on the 
fourth Monday of June, for the purpose of reviewing the 



128 REVENUE. [DIV. IV. 

assessment of property in such town. And, on the applica- 
tion of any person considering himself aggrieved, or who shall 
complain that the property of another is assessed too low, they 
shall review the assessment, and correct the same, as shall 
appear to them just. No complaint that another is assessed 
too low shall be acted upon until the person so assessed, or 
his agent, shall be notified of such complaint, if a resident of 
the county. Any two of said officers meeting, are authorized 
to act, and they may adjourn from day to day, till the}* shall 
have finished the hearing of all cases presented on said day. 
Property assessed after the fourth Monday of June shall be 
subject to complaint to the county board, subject to the rules 
specified in this section.(l) 
Ten days notice Sec. 87. The assessor shall cause at least ten days previous 
of review. notice of the time and place of such meeting, to be given by 

posting notices in at least three public places in such town. 
Failure to give Sec. 88. The failure to give such notice or hold such meet- 
ing shall not vitiate such assessment, except as to the excess 
of valuation or tax thereon shown to be unjustly made or 
levied. 

RETURN OF ASSESSOR TO COUNTY CLERK. 

Assessors Sec. 89. The assessor shall add up and note the aggregate 

comTrl-derk °^ eacn co ^ umn m n * s assessment books of real and personal 
property ; and shall also add in each book, under proper head- 
ings, a tabular statement, showing the footings of the several 
columns upon each page ; and shall add up and set down 
under the respective headings the totals of the several col- 
umns. When an assessor returns several assessment books of 
real or personal property, he shall, in addition to the tabular 
statements herein required, return a statement in like form, 
shoving the totals of all the books. 
Mode of verify- Sec. 90. The assessor shall, on or before the first day of 
July of the year for which the assessment is made, return his 

(1) TJie 7?ror'*'on requiring the assessor, toxrn cJ^rT; and siipewisor to 

attend at the time and place specified in the notice, for the purpose of reviewing the 
assessment is imperative ; and without such meeting no taxpayer can be bound by 
the assessment. When one party proved that the town clerk was not present at 
such meeting, held to throw on the other party the burden of proving that the other 
two complied with the law if it is conceded that two had the power to act. The 
owner of the land, on trial of a tax title, has the right to raise objections of this 
character. Hough v. Hastings, 18 111. R., 312. 

lV7ie?'e the assessor and town clerk met, and duly organized the board for the 
purpose of reviewing the assessments, and no person appeared before them to 
object, held to be valid. The law expressly authorizes a majority of the board to act. 
And even if a person would have the right to appear before them and object to final 
action without the presence of the supervisor, yet the entire collection of taxes for 
that reason, in such case cannot be arrested. People v. Sullivan, 43 111. R., 415. 



ing return. 



I) iv. IV.] ASSESSMENT AND COLLECTION OF TAXES. 129 

merit books to the county clerk, verified by his affidavit 
substantially in the following form :(1) 

State of Illinois, "> 

County. j b# 

I, y assessor of , do solemnly swear that the book to 

which this is attached contains a correct "and full list of all the real 
property, [or personal property, as the case may be], subject to tax- 
ation in , so far as I have been able to ascertain the same ; and 

that the assessed value set down in the proper column opposite the 
several kinds and descriptions of property is, in each case, the fair 
cash value of such property, to the best of my knowledge and belief, 
[where the assessment has been corrected by a town board, except as cor- 
rected by the town board,] and that the footings of the several col- 
umns in said book, and tabular statement returned herewith, is 
correct, as I verily believe. 

Sec. 91. The assessor shall at the same time deliver to the Delivery of 
county clerk all the schedules and statements of personal Kktemeuts. 
property which shall have been received by him, indorsed 
with the name of the person whose property is listed, and 
arranged in alphabetical order ; and the clerk shall preserve 
the same in his office for two years thereafter. (2) 

Sec 92. The several assessment books shall be filed in the A ss «ssm c j t 
office of the county clerk, and there remain open to the 
inspection of all persons. 

PAY OF ASSESSORS AND DEPUTY ASSESSORS. 

Sec. 93. The pay of assessors and deputy assessors shall, Pay of assessor, 
from time to time, in counties not under township organiza- 
tion, be determined and fixed by the county board, and in 
counties under township organization, by the town board of 
auditors. Such pay shall be for the time necessarily employed 
in making the assessment, to be paid county assessors and 
their deputies out of the county treasury, and town assessors 
and their deputies out of the town treasury. 

Sec. 94. Assessors and deputy assessors shall make outAccountsof 
their accounts in detail, giving the date of each day which assessor - 
they shall have been employed, which account they shall ver- 

""(1) After t7>e assessment in a toionsliip has been completed and returned, and 
the time fixed by law for the return has elapsed, the authority of the assessor is at 
an end for that year. Blaekwell on Tax Titles, lfc6. But see post, p. — , sec. 2S0. 

The- failure of an assessor to make return of his assessment within the time 
designated will not vitiate the assessment. See post, Miscellaneous Provisions, 
sec. 10. p. 336. Billings v. DeXten, 15 III. R., 219 ; Marsh v. Chestnut, 14 111. R., 226. 

No appeal lies to the circuit court, from the decision of the board of supervisors, in 
reference to property claimed to be exempt from taxation. Worthington v. Co. of 
Pike, 23 111. R., 363. 

(2) The lists under the above provision cannot lawfully be returned to the town 
clerk, even if so required by the town authorities. If they are so returned ami filed 
by the town clerk, he cannot recover therefor for filing them. No obligation is 
thereby imposed on the town. Town oj Charlcstown v. McCrory, 36 111. R., 456. 



130 



REVENUE. 



[DIV. IV. 



ify under oath. The assessor shall not be entitled to compen- 
sation until he shall have filed the lists, schedules, statements 
and books appertaining to the assessment of property for such 
year, in the office of the county clerk — the books to be accu- 
rately made and added up. An assessor or deputy assessor 
shall not be entitled to pay unless he has performed the labor 
and made return in strict compliance with law. 

DUTIES OE CLERK ON RETURN OF ASSESSMENT BOOKS. 



Duties of clerk 
on return of 
assessment 

Looks. 



Correction of 
assessment 

books. 



Sec. 95. The clerk, upon receipt of the assessment books 
of real property, shall correct all errors of whatsoever kind 
which he may discover, and add the name of the owner, if 
known, when the same does not already appear, and the 
description of all real property which has been omitted by the 
assessor, and is liable to taxation. 

Sec. 96. If the assessor has listed and assessed any real 
property not returned by the auditor to the clerk, the clerk 
shall immediately advise the auditor thereof, who shall ascer- 
tain if the same is taxable, and advise the clerk. If taxable, 
the clerk shall enter the same in the list of taxable property 
in his office ; if not, he shall correct the assessment books. 



EQUALIZATION OE ASSESSMENTS BY THE COUNTY BOARD. 



Equalization 
by county 
board. 



Sec 97. The county board, at a meeting to be held for the 
purpose contemplated in this section, on the second Monday 
in July, annually, after the return of the assessment books, 
shall :(1) 



(1) In equalizing assessments as between townships the board of supervisors 
are only authorized to increase or diminish the aggregate valuation cf real estate in 
any town by adding or deducting such sum upon the hundred dollars, as they may 
deem necessary to produce a just relation between all the valuations of real'estate 
in the county. The word' - dollars" has evidently been accidentally omitted after 
the word " hundred" in the above section. The board are not authorized in this pro- 
ceeding to add a certain sum to each acre of land in a township. If, in proceeding, 
the board act illegally, it will not vitiate or change the legal acts of the assessors. 
Until legaliv changed or vacated, their assessments are binding on the tax-payers. 
People v. Allen, 43 111. R., 460. 

The only power the board have over the assessment roll is, to ascertain if 
the valuation in one town or district, bear a just relation to all the towns and dis- 
tricts in the county, and if it does not. the statute authoiizes them to increase or 
diminish the aggregate valuation of the real estate in any town or district, by add- 
ing or deducting such sum upon the hundred as may. in their opinion, be necessary 
to produce such relation. And in order to effect this just relation, the board must 
include unimproved as well as improved lands. The People ex rel. v. Nichols, 49 IU. 
*C. M7. 

The equalization must be made so as not to reduce the aggregate valuation of the 
county ; "what is taken from one town must be added to another. The board have 
3io authority, however, to equalize the valuation of personal property in manner as 
they have in regard to real estate : corrections in this respect can be made on appli- 
cation of the person aggrieved, under section 13 of this article. Opin. Aud. Mixer, 
Sept, 22. 1869. 

While the law doos not allow the aggregate valuation of tlie county to be reduced, 
there is no prohibition against an increase to such an amount as is incidental to an 
equalization, and when the equalization is made pursuant to law and according to 



DIV. IV.J ASSESSMENT AND COLLECTION OF TAXES. 181 

First — Assess all such lands or lots as have been listed by shall assess ail 
the county clerk and not assessed by the assessor. Said board lessor. by 
may make such alterations in the descriptions of real prop- 
erty as it shall deem necessary. 

Second — On the application of any person considering Hear com- 
himself aggrieved, or who shall complain that the property of equamy g of nst 
another is assessed too low, they shall review the assessment assessment. 
and correct the same as shall appear to be just. No com- 
plaint that another is assessed too low shall be acted upon 
until the person so assessed, or his agent, shall be notified of 
such complaint, if a resident of the county. 

Third — To hear and determine the application of any Also appiica- 

•, . -. i • i 7 i j. c tion for exemp- 

person who is assessed on property, claimed to be exempt irom tion. 
taxation. If the board shall decide that any such property is 
not liable to taxation, and the question as to the liability of 
such property to taxation has not been previously determined, 
as hereinafter provided, the decision of said board shall not 
be final, unless approved by the auditor of public accounts ; 
and it shall be the duty of the county clerk, in all such cases, ^ d u e re of pro " 
to make out and forward to the auditor a full and complete 
statement of all the facts in the case. If the auditor is satis- 
fied that such property is not legally liable to taxation, he 
shall notify the clerk of his approval of the decision of the 
board, and the said clerk shall correct the assessment accord- 
ingly.- s But if the auditor is satisfied that such property is 
liable to taxation, he shall advise the clerk of his objection to 
the decision of the board, and give notice to said clerk that 
he will apply to the supreme court in either division, specify- 
ing at what term thereof, for an order to set aside and reverse 
the decision of the county board. Upon the receipt of sucli 
notice, the clerk shall notify the person making the applica- 
tion aforesaid. It shall be the duty of the auditor to file irt 
the supreme court a certified statement of the facts certified 
by the clerk, as aforesaid, together with his objections there- 
to, and the court shall hear and determine the matter as the 
right of the case may be. If the board shall decide that 
property so claimed to be exempt is liable to be taxed, and the 
party aggrieved shall at the time pray an appeal, a brief state- 
ment in the case shall be made by the clerk, and transmitted 
to the auditor, who shall present the case to the supreme court 
in like manner as hereinbefore provided. In either case, the 

the best judgment of the hoard, it should he sustained. Opin. Aud. Miner, Jan. 30, 
1868. 

It Is thought that the board of supervisors cannot lawfully adopt the valuation 
made by the State board, for purposes of local taxes. Opiu. Aud. Miner, April 27, 
1869. 



182 REVENUE. [DIY. IV. 

collection of the tax shall not be delayed thereby, but in case 
the property is decided to be exempt, the tax shall be abated 
or refunded. 
Board shall see Fourth — It shall ascertain whether the valuations in one 
aim S one lua " town or district bear just relation to all the towns or districts 
t0 ^. b ^rs just in the county; and may increase or diminish the aggregate 
others in the valuation of property in any town or district, by adding or 
deducting such sum upon the hundred [dollars] as maybe 
necessary to produce a just relation between all the valuations of 
property in the county ; but shall, in no instance, reduce the 
aggregate valuation of all the towns or districts below the 
aggregate valuation thereof, as made by the assessors; neither 
shall it increase the aggregate valuation of all the towns or 
districts, except in such an amount as may be actually neces- 
sary and incidental to a proper and just equalization. It may 
consider lands, town or city lots, personal property, and rail- 
road property (except "railroad track," and "rolling stock,") 
separately, and determine a separate rate per cent, of addition 
or reduction for each of said classes of property, as may be 
necessary to a just equalization of the assessed value of said 
classes of property within the respective towns, and of the 
same between the several towns or districts in the county, 
county board If the county board of any county shall find the aggregate 
^assessment assessment of the county is too high or too low, or is generally 
and order new so unequal as to render it impracticable to equalize such 
assessment fairly, they may set aside the assessment of the 
whole county or of any township or townships therein, and 
order a new assessment, with instructions to the assessors 
to increase or diminish the aggregate assessment of such 
county or township, as the case may be, by such an amount as 
said board may deem right and just in the premises, and con- 
sistent with this act. 

REPORT OF ASSESSMENT BY THE CLERK, TO THE AUDITOR, FOR 
EQUALIZATION. 

Report to Sec. 98. On or before the tenth day of July, annually, it shall 

wh d en andhowke the duty of county clerks, upon the receipt of assess- 
made. ment books, to make out and transmit to the auditor an 

abstract of the assessment of property, showing the num- 
ber, value and average value of each kind of enumerated 
property, as shown by the assessment ; the value of each item 
of unenumerated property, and total value of personal prop- 
erty; the length of main track, the length of side track, and 
the numbers, values, and average values of each separate item 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 133 

of railroad property; the number of acres, value and average 
value of improved lands; the number of acres, value and aver- 
age value of unimproved lands; the total number of acres, 
total value and average value, per acre, of all lands; the 
number, value and. average value of improved town or city 
lots; the number, value and average value of unimproved 
town or city lots ; the total number of lots, total value and 
average value of all lots ; and the total value of all property ; 
the number of acres in cultivation of wheat, corn, oats, 
meadow and other field products in inclosed pasture, orchards 
and woodland, whether inclosed or not in that year. Said 
abstract shall be made out on blanks, which it shall be the 
duty of the auditor to furnish the county clerks for that pur- 
pose. The values to be given in said abstract shall be the vaiuefto'b^ 
assessed valuations, except in the case of railroad property ^ven in said 
denominated "railroad track" and "rolling stock," the value Exception of 
of which shall be given as returned by the railroad company of^S kmds 
to the county clerk. The county clerk shall, at the same property. 
time, and accompanying said abstract, furnish a detailed state- 
ment of the railroad property denominated "railroad track" 
and "rolling stock," reported by each road located in or 
through their counties. If there are any roads so located 
that have not made their reports as required by this act, the 
clerk shall report the fact, giving the name of such railroad. 

Sec. 99. It shall be the duty of the county clerks, in case Failure of 
of failure of any assessor to make return of assessment within rnSereturn. 
the time specified in this act, to transmit a statement of the 
assessment in all the towns or districts from which returns Duty of county 
have been received, together, with a statement of the amount 
of taxable property assessed in the defaulting towns or dis- 
tricts for the previous year. 

STATE BOARD OF EQUALIZATION. 

Sec. 100. The State board of equalization shall, at the state board of 
expiration of the term of office of the members now forming hovTcomposed. 
said board, consist of one member from each congressional 
district in the State, elected as hereinafter provided, and the 
auditor of public accounts. (1) 

(1) TJie act to establish a State board of equalization of assessment, is held 
not to be unconstitutional. People ex rel., etc., v. Salomon, 46 111. R., 342. 

The increase or reduction, as the case may be, determined by the State board 
•of equalization to be made on the assessment of property in any county, should be 
extended on the valuation as equalized by the board of supervisors. As to moneys 
and credits, it is considered that they are affected in precisely the same way, and to 
the same extent as other property by the action of the State board. Opinion Auditor 
Miner. October 3, 1867. 



134 



REVENUE. 



[DIV. IV 



"When elected. 



Eeturns. 



Vacancy. 



@ath of mem- 
bers. 



Organization 
of board. 



Tabular state- 
ments of 
assessments 
compiled. 



Secretary. 



Time of meet- 
ing. 



Sec. 101. The qualified electors of each congressional dis- 
trict shall, at the general election in November, eighteen hun- 
dred and seventy-two, and every four years thereafter, elect 
one of their number to serve as a member of said board of 
equalization, who shall hold his office for four years, and until 
his successor is elected and qualified. The returns of the poll 
books and certificates of election shall be goverened by the 
laws regulating the election of the members of congress ; and 
in case of vacancy occurring in said board by death, resigna- 
tion or otherwise, it shall be the duty of the governor to 
appoint some person, having the qualifications of an elector in 
the district in which such vacancy occurs, to fill the same 
until the next regular election for members of said board. 

Sec. 102. Each member of said board, before entering 
upon the duties of his office, shall take the oath (or affirma- 
mation) prescribed by the constitution of this State. 

Sec. 103. At the first meeting of said board, quadren- 
nially, it shall organize by selecting one of its members as 
chairman, and appointing a secretary; and may, from time to 
time, select such employees as may be deemed necessary. 
The secretary shall take the oath prescribed by the constitu- 
tion. 

Sec. 104. It shall be the duty of the secretary of said 
board, under the direction of the auditor of public accounts, 
to compile the abstracts of assessments received from the 
county clerks into tabular statements, convenient for the use 
of the board; which statements and the original abstracts 
shall be submitted to the board on the first day of its session 
in each year, or as soon thereafter as the board is organized. 
The secretary shall perform such duties in vacation as shall be 
assigned to him by the board. 

Sec. 105 Said board shall assemble at the state capital on 
the second Tuesday in the month of August, annually, and 
examine the abstracts of property assessed for taxation in the 
several counties of this State, as returned to the auditor, and 
shall equalize the assessments as hereinafter provided; but 
said board shall not reduce the aggregate assessed valuation in 
the State; neither shall it increase said aggregate assessed 
valuation, except in such an amount as may be really neces- 



Tlie equalization lata intends that the rate of deduction or addition determined 
by the State board of equalization, shall be applied to the assessed value of property 
in the counties, after all the corrections and equalizations have been made by the 
county authorities. The law does not require any county, town or individual to 
pay a specific amount as tax; the requirement is (and no other would be consti-' 
tutional) that each person and corporation •'shall pay a tax in proportion to the 
value of his or her property," and certain rates of tax are imposed on the valuation 
of all property, as assessed, corrected, and equalized. Opinion Auditor Mines, 
November 13, 1868. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 135 

sarv to a just equalization, and not exceeding one per cent, one per cent, 
on such aggregate assessed valuation; but this rule shall not 
apply to railroad property. 

Sec. 106. Said board, in equalizing the valuation of prop- Different 
erty as listed and assessed in the different counties, shall con- ejtyoon- prcp 
sider the following classes of property separately, viz. : per- Sldered - 
sonal property; railroad and telegraph property; lands, and 
town and city lots ; and, upon such consideration, determine 
such rates of addition to or deduction from the listed or 
assessed valuation of each of said classes of property in each 
county, or to or from the aggregate assessed value of each of 
said classes in the State, as may be deemed by the board to 
be equitable and just; such rates being in all cases even and 
not fractional ; and such rates, as finally determined by said 
board, shall not be combined. 

Sec. 107. In equalizing the value of personal property state averages, 
between the several counties, said board shall cause to bej^g^* 1 
obtained the State averages of the several kinds of enumer- property, 
ated prnoerty, from the aggregate footings of the number and 
value of each ; and the value of the several kinds of enumer- 
ated property in each county shall be obtained at those aver- 
age values ; and the value of enumerated property thus 
obtained, as compared with the assessed value of such property 
in each county, shall be taken by said board to obtain a rate 
per cent, to be added to or deducted from the total assessed 
value of personal property in each county: Provided, That Proviso, 
whenever in the opinion of the board it is necessary, to a 
more just and equitable equalization of personal property, that 
a rate per cent, be added to or deducted from the value thus 
obtained in any one or more of the counties, said board shall 
have the right so to do ; but the rate per cent, hereinbefore 
required shall first be obtained to form the basis upon which 
the equalization of personal property shall be made. 

Sec. 108. The State board of equalization shall assess the capital stock 
capital stock of each company or association, respectively, now Son?— Sow 
or hereafter incorporated under the laws of this State, in the assessed - 
manner hereinbefore in this act provided. The respective 
assessments so made (other than of the capital stock of railroad 
and telegraph companies) shall be certified to by the auditor, 
under direction of said board, to the county clerk of the respec- 
tive counties in which such companies or associations are located, 
and said clerk shall extend the taxes for all purposes on the§eSL° f county 
"respective amounts so certified the same as may be levied on 
the other property in such towns, districts, villages or cities in 
which such companies or associations are located. 



136 REVENUE. [DIV. IV. 

Railroad prop- Sec. 109. Said board shall also assess the railroad property 
erty - denominated in this act as "railroad track" and "rolling 

stock ;" and said board is hereby given the power and author- 
ity, by committee or otherwise, to examine persons and 
papers. The amount so determined and assessed shall be cer- 
tified by the auditor to the county clerks of the proper coun- 
Howdis- ties. The ccunty clerk shall in like manner distribute the 
value, so certified to him by the auditor, to the county and to 
the several towns, districts, villages and cities in his county 
entitled to a proportionate value of such "railroad track " and 
"roiling stock." And said clerk shall extend taxes against 
such values, the same as against other property in such towns, 
districts, villages and cities, 
capital stock of Sec. 110. The aggregate amount of capital stock of rail- 
grap^ccX 1 — road or telegraph companies assessed by said board shall be 
uted dlstnb " distributed proportionately by said board to the several coun- 
ties in like manner that the property of railroads denominated 
"railroad track" is distributed. The amount so determined 
shall be certified by the auditor to the county clerks of the 
proper counties. The county clerk shall in like manner dis- 
tribute the value, so certified to him by the auditor, to the 
county and to the several towns, districts, villages and cities 
in his county entitled to a proportionate value of such capital 
stock. And said clerk shall extend taxes against such values, 
the same as against other property in such towns, districts, 
villages and cities. 
Lands- how Sec. m* ^ands sna ll De equalized by adding to the aggre- 
equaiized. gate assessed value thereof, in every county in which said 
board may believe the valuation to be too low, such rate per 
centum as will raise the same to its proper proportionate value, 
and by deducting from the aggregate assessed value thereof, 
in every county in which said board may believe the valuation 
to be too high, such per centum as will reduce the same to its 
and city P r0 P er value. Town and city lots shall be equalized in the 
same manner herein provided for equalizing lands, and, at the 
option of said board, may be combined and equalized with 
lands. 

Table— how Sec. 112. When said board shall have separately considered 
made up. t ^ e severa i classes of property as hereinbefore required, the 
results shall be combined into one table, and the same shall be 
examined, compared and perfected, in such manner as said 
board shall deem best to accomplish a just equalization of 
assessments throughout the State, preserving, however, the 
principle of separate rates for each class of property. 
Partial returns. Sec. 113. In all cases of partial return from any county 



Town 
lots. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 137 

where the number of defaulting towns or districts do not 
exceed one-third of the whole number of towns or districts in 
the county, the board of equalization may estimate the valua- 
tion in the towns or districts from which returns have not 
been received, and may equalize the total valuation as in other 
cases. In cases where the defaulting towns or districts exceed 
in number one - third of the whole number of towns or dis- 0ne tnird - 
tricts in the county, and in all cases of failure on the part of 
any county clerk to furnish the proper returns of the assess- 
ment of his county to the auditor prior to or during the meet- 
ing of the board of equalization, in each year, said board may, 
by order, authorize the auditor to equalize the assessment of e^SfSewsess- 
such county when full returns have been received by him. ments. 

Sec. 114. When said board shall have completed its equali- Duty of board 
zation of assessments, for any year, the chairman and secre- $ono? °££ e " 
tary shall certify to the auditor the rates finally determined equalization, 
by said board to be added to or deducted from the listed or 
assessed valuation of each class of property in the several 
counties, and also the amounts assessed by said board ; and it 
shall be the duty of said auditor, under his seal of office, to 
report the action of the board to the several county clerks, 
immediately after the adjournment of said board. 

Sec. 115. A report of the proceedings of said board of Report to be 
equalization shall be published annually, in pamphlet form, pu 
and -five thousand copies thereof printed, of which number 
each member shall be entitled to fifty copies, the auditor to Numberofco 
five hundred copies, and the remainder thereof shall be dis- ies and mode 
tributed by the secretary of state to the several counties, in 
the proportion usual in similar cases. Said distribution shall 
be made by mail or express, immediately upon the receipt of 
said report from the public printer, the cost of such distribu- 
tion to be paid by the secretary of state out of the appropri- 
ation for incidental expenses. 

Sec. 116. The secretary of state shall furnish such print- sec'y of state 
ing, fuel, lights and rooms as may be necessary for the trans- *^™ sh 
action of the business of said board. Each member of said 
board shall receive for his services the sum of five dollars per compensation, 
day during its sessions, and ten cents per mile for each mile Mileage, 
necessarily traveled in going to and returning from the seat 
of government, to be computed by the auditor of public 
accounts, and no other allowance or emolument, directly or 
indirectly, for any purpose whatever, except the sum of ten 
dollars per session to each member, which shall be in full for 
postage, stationery, newspapers, and all other incidentals and incidentals, 
perquisites. The pay and mileage allowed to each member of 



138 



REVENUE. 



[DIV. IV. 



Tage, janitor, 
etc. 



Quorum. 



said board, and the pay allowed to its secretary and employees 
shall be certified by the chairman of the board to the auditor 
of public accounts, who shall issue his warrants on the State 
treasurer therefor. Said board may employ one page, at two 
dollars per day ; two secretaries, at five dollars per day each ; 
and one janitor or doorkeeper, at three dollars per day. Two- 
thirds of the whole number of members shall constitute a 
quorum, and said board may adjourn from time to time until 
the business before it is disposed of. 



RATES OF TAXATION. 



Rates of taxa- 
tion. 



Sec. 117. All rates for taxes, hereinafter provided for, shall 
be extended by the county clerk on the assessed valuation of 
property, as equalized and assessed by the State board of 
equalization. 



FOR STATE PURPOSES. 



For State pur- 
poses, who 
shall ascertain 
rate per cent. 



"State school 
tax." 



Auditor to 
compute rates 
per cent for — 



" Revenue 
fund." 



"Interest fund' 

" State school 
fund." 



Sec. 118. The governor, auditor and treasurer shall, annu- 
ally, on the completion of the assessment and equalization of 
property, ascertain the rate per cent, required to produce the 
amount of taxes levied by the General Assembly. 

Sec. 119. There shall be annually assessed and collected, 
at the same time and in the same manner as other State taxes, 
such rate of tax on the equalized valuation of the property of 
this State, as is or may be provided by the laws concerning 
free schools, which tax shall be denominated the " State school 
tax," and the moneys arising therefrom be distributed in such 
manner as is or may be provided by the laws of this State con- 
cerning free schools ; and no part of the fund raised by the 
aforesaid tax shall be diverted to or used for any other pur- 
pose than the support and maintenance of free schools in this 
State. 

Sec. 120. The auditor shall, annually, compute and certify 
to the county clerks such separate rates per cent, as will pro- 
duce the net amounts of State taxes authorized to be levied : 

First — For revenue purposes, to be designated u Revenue 
Fund." 

Second — For interest purposes, to be designated 
Fund." 

Third — For the State school purposes, to 
" State School Fund." 

Fourth — For such other taxes as may be required by law 
to be levied by him. 



Interest 



be designated 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 139 

The "Interest Fund" tax shall be levied so long only as interest fund, 
the same may be necessary, and shall be applied to the pay- how a PP hcd - 
ment of interest only. 

FOR COUNTY PURPOSES. 

Sec. 121. The county board of the respective counties Taxes 
shall, annually, at the September session, determine the purposes. 7 
amounts of all taxes to be raised for coiwity purposes, the 
aggregate amount of which shall not exceed the rate of 
seventy - five cents on the one hundred dollars valuation of prop- 
erty, except for payment of indebtedness • existing at the 
adoption of the present State constitution, unless authorized 
by a vote of the people of the county. When for several 
purposes, the amount for each purpose shall be stated sepa- 
rately.^) 

FOR ALL OTHER PURPOSES. 

Sec. 122. The proper authorities of towns, townships, dis- i.»w« i873, 
tricts and incorporated cities, towns and villages, collecting Pg. 204. 

taxes under the provisions of this act, shall annually, on or ' y^— ^ 

before the second Tuesday in August, certify to the county Swnfcity 
clerk the several amounts which they severally require to be JJJJf D °^ r 
raised by taxation, anything in their respective charters, or 
in acts heretofore passed by the General Assembly of this 
State, to the contrary notwithstanding. 

COLLECTORS' BOOKS — EXTENDING RATES. 

Sec. 123. The county clerk shall, annually, make out for collectors 
the use of collectors, in books to be furnished by the county, books - 
correct lists of taxable property, as assessed and equalized. 

Sec. 124. In counties not under township organization, such how made up. 
book shall be made up by congressional townships — but 
parts or fractional townships, less than full townships, may 

(1) The levy of a special tax for purposes not authorized by law, is void. But 
when authority exists to levy a tax to pay existing indebtedness, the levying of a 
tax in connection therewith not authorized, does not render the entire levy void, if 
the authorized tax can be separated from that unauthorized. Allen, etc., v. Peoria, 
etc., E. R. Co., 44 111. R., 85, See also Briscoe v. Allison, 43 111. R., 29. 

A. court of equity will not enjoin a tax for mere errors, if it is attempted to 
be levied by an officer de facto, under authority incident to his office; but may do so 
if the levy is by one without pretense ot authority or color of office, to which such 
right is an incident. Munson v. Minor, 22 111. R., 602. 

The board of supervisors have no authority to instruct the county treas- 
urer to withhold any part of the State tax. In case of an injunction restraining the 
collection of tax, the amount of the State tax thus enjoined may be certified by the 
county clerk as a separate item of credit, and it will be allowed "by the auditor, con- 
ditionally, until the injunctiou case is decided. Opin. Auditor Miner June 13, 1868. 



purposes. 



140 REVEXUE. [DIV. IV. 

be added to full townships, at the discretion of the county 
board. In counties under township organization, said 
books shall be made to correspond with the organized town- 
ships. Separate books may be made for the collection of all 
taxes within the corporate limits of cities, towns and villages. 
This section shall not be construed to interfere with the tax 
book provided for in this act, for the use of county collectors, 
for collecting all taxes charged against railroad property and 
the capital stock of telegraph companies, 
collector's Sec. 125. The respective county clerks shall cause the col- 

rui°edr how lectors' books to be properly ruled for the several classes of 
property, providing for each class three columns for values — 
the first to show the assessed valuation ; the second to show 
the valuation as corrected and equalized by the county board ; 
and the third to show the valuation as equalized or assessed 
by the State board of equalization. Said books to contain 
proper columns for the extension of the several kinds of taxes, 
and other purposes. 
cierk shall Sec. 126. Said clerks shall extend the rates of addition or 

deduct;ons e aiid deduction ordered by the county board and State board of 
additions. equalization, in the several columns provided for that purpose. 
The rates per cent, ordered by the State board of equalization 
shall be extended on the assessed valuation of property, as 
Exception. corrected and equalized by the county board — except, that in 
the case of railroad property, denominated " railroad track " 
and "rolling stock," said rates shall be extended on the listed 
uation° nal Val " vama tions of such designated property. In all cases of exten- 
sion of valuation, where the equalized valuation shall happen 
to be fractional, the clerk shall reject all such fractions as may 
fill below fifty cents ; fractions of fifty cents or more shall be 
extended as one dollar, 
clerks shall Sec. 127. The said clerks shall estimate and determine the 

pjrcen£ rate rate per cent, upon the proper valuation of property in the 
respective towns, townships, districts and incorporated cities, 
town and villages in their counties, that will produce, within 
the proper divisions of such counties, not less than the net 
amount of the several sums that shall be required by the 
county board, or certified to them according to law. 
cierk shaiK Sec. 128. All State and county taxes shall be extended by 
the respective county clerks upon the property in their coun- 
ties, upon the valuation produced by the equalization and 
assessment of property by the State board of equalization. 
Town, district, village, city and other taxes, shall also be 
extended against such assessed and equalized valuation of 
property within their respective jurisdictions. In the' exten- 



extend taxes. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 141 

sion of taxes, the fraction of a cent shall be extended as one Fraction of 

ceut. 

cent. 

Sec. 129. In all cases, where any real property has hereto- Forfeited 
fore been, or may hereafter be, forfeited to the State for taxes, propert> ' 
it shall be the duty of the clerk, when he is making up the 
amount of tax due on such real property for the current year, 
to add the amount of back tax, interest, penalty and printers' 
fees remaining due on such real property, with one year's Year's interest, 
interest at ten per cent, on the amount of tax due, to the tax 
of the current year, and the aggregate amount so added to- 
gether shall be collected in like manner as the tax on other real 
property for that year may be collected : Provided, that the Proviso, 
county clerk shall first carefully examine said list, and strike 
therefrom all errors, and otherwise make such corrections as 
may be necessary with respect to such property or tax. 

Sec. 130. When the books or lists for the collectors are statement of 
completed, the county clerk shall make a complete statement ^forwarded 
of the assessment and taxes charged, on blanks, and in con- t0 auditor, 
formity to instructions furnished to him by the auditor. The 
clerk shall record said statement, and forward it, properly cer- 
tified, to said auditor. 

Sec. 131. It shall be the duty of the county clerk to certificate of 
make, in each collector's book, a certificate of the rate of additions, 
deduction or addition determined by the State board of equali- 
zation in the county to which such books shall pertain ; and, 
also, the rate of addition or deduction determined by the 
county board in the town, district, city or village to which 
such book shall pertain. 

Sec. 132. To each collector's book, a warrant, under the ^fJJJg^ * 
hand and official seal of the county clerk, shall be annexed, 
commanding the collector to collect from the several persons 
named in said book, the several sums entered in the column 
of totals, opposite their respective names. The warrant shalL 
direct the collector to pay over the several kinds of taxes that 
may be collected by him, to the respective officers entitled 
thereto, less the compensation for collection allowed him by 
law.(l) 

fl) Where the law requires a coTfpctor>s warrant to be sinned by certain 
officers, and the warrant bears their signatures, but preceding one of the signatures, 
the word " countersigned " appears, it is nevertheless a proper signing of the instru- 
ment, and forms no objection to it. The law is answered when the signatures of the 
officers named in the statute appear upon the instrument. Qurnee v. The City of Chi- 
cago, 40 111. R., 165. 

A collector's warrant confers the same authority, and performs the same 
office as a/t. fa. execution, and when regular and fair on its face, protects the officer 
and those acquiring rights under it, to the same extent as an execution. Hill et al. 
V. Figley, 25 111. R., 156. 

All the personal property of the tax payer is bound for the payment of his 
taxes, from the time the collector receives bis warrant until they shall have been 



142 REVENUE. [DIV. IV. 

QUALIFICATION OF TOWN AND DISTRICT COLLECTORS. 

Qualification Sec. 133. Every town or district collector, before he enters 

of collectors. U p 0n the duties of his office, and within eight days after he 

receives notice of the amount of taxes to be collected by him, 

securities. shall execute a bond, with two or more securities, to be 

approved by the county board, or supervisor and town clerk 

of his town, as the case may require, in double the amount of 

such taxes, conditioned for the faithful execution of his duties 

signatures to as such collector. Signatures to such bond, signed with a 

mustbe wu- ark mark shall be witnessed, but in no other case shall witness be 

nessed. required. Said bond shall be substantially in the following 

form, to wit: 

Form of col- Know all men by these presents, that we, A. B., of the of 

lector's bond. ? j n t } ie COU iity of , in the State of Illinois, town 

[or district] collector, and C. D. and E. F., of the said county and 
State, as securities, are held and firmly bound unto the people of the 

State of Illinois, in the penal sum of , for the payment of 

which, well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, firmly by these presents. Signed and 

sealed, this day of , A. D. 18 — . 

The condition of the foregoing bond is such, that if the above 
bound A. B. shall perform all the duties required to be performed by 
him, as collector of the taxes for the year 18 — , in the town [or dis- 
trict] of , in the county of , Illinois, in the time and 

manner prescribed by law, and, when he shall be succeeded in office, 
shall surrender and deliver over to his successor in office all books, 
papers and moneys appertaining to his said office, then the foregoing 
bond to be void ; otherwise to remain in full force. 

A. B. [seal" 
C. D. [seal] 
E. F. [seal] 

We shall also take and subscribe an oath, to be indorsed on 
the back of the bond, substantially as follows : 

Oath. I do solemnly swear that I will support the constitution of the 

United States and the constitution of the State of Illinois, and that 
I will faithfully discharge the duties of the office of town [or dis- 
trict] collector, according to the best of my ability. 

Sec. 134. The chairman of the county board, or town 

?aid. The warrant, like an executiou, operates as a lien. Hill et al. v. Figley, 23 
11. R., 418. Held, that though a tax was illegally levied, yet the collector, who was 
simply the ministerial officer of the town, to whom a warrant was directed, regular 
on its'face, and which he was to collect or not at his peril, was not liable lor the 
costs of an injunction restraining the collection of the tax. It seems it would be 
otherwise if he had actually attempted to collect the tax. Drake et al. v. Phillips et 
al. 40 111. R., 389. * 

The payment of an assessment is not voluntarily made if the collector has a 
warrant, by virtue of which he may levy and sell : and the party who has paid the 
money may recover it of a municipal corporation ; although the assessment was 
illegal, the city having the money for its general uses. Bradford v. City oj Chicago, 
25 111. R., 411. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 143 

supervisor, as the case may require, shall, within six days Bona, by 
thereafter, file such bond, with such approval indorsed thereon, p r ovSif p 
in the office of the recorder, who shall record the same, 
including the oath, in a separate book to be provided for the 
purpose, and when recorded, shall be filed in the office of the 
county clerk by the recorder. Said bond, when so filed for Filed for 
record, shall be a lien against the real estate of such town or record, 
district collector, until he shall have complied with the con- 
ditions thereof. 

DELIVERY OF COLLECTOR'S BOOKS — WARRANTS. 

Sec. 135. The respective county clerks shall, on or before, Delivery of 
or within ten days after the first day of December, annually, books!° rs 
or as soon thereafter as the collectors are duly qualified, deliver 
to them the books for the collection of taxes ; and it shall be 
the duty of the collectors, within such time, or as soon there- 
after as they are qualified, to call at the clerk's office and 
receive said books. The tax book, provided for collecting all Railroad and 
taxes charged against railroad property, and the capital stock telegraph 
of telegraph companies, shall be delivered to the county col- propei 
lector, within the same time, annually, or as soon thereafter as 
he is qualified. If the books for the collection of taxes are 
not completed arid ready for delivety to the collectors at the 
time herein specified, they shall be delivered as soon as they 
are completed. 

Sec. 136. To each town or district collector's book a w 1 ™J* to 
warrant, under the hand of the county clerk and seal of his book, 
office, shall be annexed, commanding such town or district col- 
lector to collect from the several persons named in said town 
or district collector's book, the several sums of taxes therein 
charged, opposite their respective names. 

Sec. 137. In all cases the warrant shall authorize the ¥ , aws i 87 3, 
town or district collector, in case any person named in such col- JK e sfoi. edM 

lector's book shall neglect or refuse to pay his personal ^rop- s Y ' 

erty tax, to levy the same by distress and sale of the goods Refusal to pay 
and chattels of such person ; and it shall require, all payments Town collector 
therein specified to be made by such town or district collector2iY le%yanc 
on or before the tenth day of March next ensuing. 

Sec. 138. The warrant shall direct the town or district col- To whomcol- 
lector, after deducting the compensation to which he may be pay funds, 
legally entitled, to pay over to the proper officers the amount 
of tax collected for the support of highways and bridges, and 
to the supervisor of the town the moneys which shall have 
been collected therein, to defray town exnenses; to the proper 



144 



REVENUE. 



[DIV. IV. 



Clerk to make 
certified state- 
ment. 



school officers, the district school tax ; to the city or incorpo- 
rated town or village treasurer, or other proper officer, the 
taxes or special assessments collected by him for such city or 
incorporated town or village, or others, as often and at such 
times as may be demanded by the proper officer ; and to the 
county collector, the county tax and the taxes payable to the 
State treasury collected by him. 

Sec. 139. On the delivery of the tax books to the town or 
district collectors, the clerk shall make a certified statement, 
setting forth the name of each town or district collector, the 
amount of taxes to be collected and paid over for each pur- 
pose for which the tax is levied in each of the several towns 
or districts, cities and villages, and furnish the same to the 
county collector. 



APPOINTMENT OF COLLECTORS IN COUNTIES NOT UNDER TOWN- 
SHIP ORGANIZATION. 

sheriff ex- offi- Sec. 140. Each county in this State, not under township 
do collector, organization, shall be a collection district for the purposes of 
this act ; and the sheriffs of such counties shall be, respec- 
tively, ex -officio district collectors of such collection districts. 

VACANCIES AND RESIGNATIONS. 



Vacancies, how 

filled. 



Sec. 141. If any town or district collector in this State 
shall refuse to serve, or shall die; resign or remove out of the 
county, district or town for which he was elected or appointed, 
or the office becomes vacated in any other way, before he shall 
have entered upon or completed the duties of his office, or 
shall in any way be prevented from completing the same, the 
county or town board, as the case may require, shall forthwith 
appoint a collector for the remainder of the year, who shall 

security to be gi ye tne ^ e security and be subject to the like penalties, and 
have the same 'power and compensation as the town or district 
collector in whose place he was appointed, and the county col- 
lector shall forthwith be notified of such appointment. Such 
appointment shall not exonerate the former town collector or 

Resignations. Ljg securities from any liability incurred by him or them. No 
resignation of a town or district collector shall be accepted, 
unless sufficient cause is shown, nor shall the person resigning 
be re -appointed to complete the collections in the same or 
any other town or district in the county. 

Sec. 142. The town or district collector so appointed shall 
keep an account of all collections made by the former col- 



given by 
appointee. 



Former col 

lectors 

accounts. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 145 

lector, so fur as he can ascertain the same, and when any one 
shall present a receipt for taxes paid to the former collector, 
he shall mark against the amount of such taxes, to whom and 
when paid. 

Sec. 143. In case of such appointment, the chairman of Time for coi- 
the county board or the supervisor of the town, may extend e e x c t e n S c may bc 
the time for the collection of taxes, for a period not exceeding 
twenty days, of which extension the county collector shall be 
notified. 

TREASURER EX -OFFICIO COLLECTOR. 

Sec 144. The treasurers of counties under township organi- county treas- 
zation, and the sheriffs of counties not under township organi- ^Sector. a ° 
ration, shall be ex -officio county collectors of their respective 
counties. 

Sec. 145. Said collector shall, on or before the first day of ms bond. 
December, annually, or as soon as he is elected and qualified, 
and before he enters upon the duties of his office as collector, 
execute a bond, in addition to his bond as treasurer, in a penal 
sum of at least double the amount of State taxes to be col- 
lected in the year next thereafter, with two or more securities, 
who shall be residents of the said county, and owners of real securities, 
estate located within this State, equal in value to the amount 
specified in the bond ; which amount shall be determined, and 
whioh bond shall be approved by the county board. Each 
name shall be recited, in full, in the body of the bond. The si<ynatures by 
signatures to such bond, signed by a mark, shall be witnessed, mark must be 

witnessed 

but in no other case shall witness be required. Such bond 
shall be substantially in the following form, to wit : 

Know all men by these presents, that we, A. B., collector, and C. Bon( j. 
D. and E. F., securities, all of the county of ,and State of Illi- 
nois, are held and firmly bound unto the People of the State of 

Illinois, in the penal sum of dollars, for the payment of which, 

well and truly to be made, we bind ourselves, each of us, our heirs, 
executors and administrators, firmly by these presents. Signed and 
sealed, this day of , 18 — . 

The condition of the foregoing bond is such that if the above conditions 
bound A. B. shall perform all the duties required to be performed by 
him as collector of t'he taxes for the year 18 — , in the county of 

, in the State of Illinois, in the time and manner prescribed 

by law, and when he shall be succeeded in office, shall surrender 
and deliver over to his successor in office all books, papers and 
moneys appertaining to his said office, then the foregoing bond to 
be void : otherwise to remain in full force. 

A. B. [seal." 
C. D. [seal." 
;E. F. [seal/ 



146 



REVENUE. 



[DIV. IV. 



His oath. 



Approval of 
bond. 



Who may 
approve. 



Bond to be filed 
in auditor's 
office. 



New bond." 



Liability of 
security. 



Securities on 
bond. 



He shall also take and subscribe an oath, to be indorsed on 
the back of the bond, substantially as follows : 

I do solemnly swear that I will support the Constitution of the 
United States and the Constitution of the State of Illinois, and that I 
will faithfully discharge the duties of the office of county collector 
according to the best of my ability.(l) 

Sec. 146. The collector's bond shall be approved by the 
county board, and shall be recorded on the records of said 
board, and forthwith mailed to the auditor by the county clerk. 
Said clerk shall attach his certificate to said bond, under the 
seal of his office, showing that it has been duly approved and 
recorded. Said bond, when approved and recorded, shall be 
a lien against the real estate of such collector until he shall 
have complied with the conditions thereof. 

Sec. 147. The chairman of the county board, the county 
judge and the county clerk shall have power and authority to 
approve the bond of the county collector in like manner as 
the county board has to approve said collector's bond ; and 
said bond, when so approved, shall be sbuject to the several 
provisions of this act, the same as if approved by said board. 

Sec. 148 The collector's bond, when received by the audi- 
tor, and if found to be made in conformity to law, and the 
securities satisfactory, shall be filed in his office and the fact 
thereof certified to the county clerk. If the auditor finds 
said bond to be not in accordance with law, or if he has reason 
to doubt the sufficiency of the surety, he shall return the bond 
to the county clerk, who shall notify the collector to make a 
sufficient bond. If a new bond is required, it shall be approved 
and recorded and subject to the requirements of this section, 
the same as the first bond given by the collector. No tax 
books or lists shall be placed in the hands of the county col- 
lector until the auditor's certificate, under the seal of his 
office, has been received by the county clerk, showing that the 
collector's bond has been received and filed in the auditor's 
office. Nothing in this section shall be construed as relieving 
the securities of a collector from liabilities incurred under a 
bond not approved and filed by the auditor. 

Sec. 149. The securities of any bond given in pursuance 
of this act, or either of them, may at any time after the exe- 
cution of said bond, if they, or either of them, have good 
reason to believe that the officer in said bond is about to fail 



(1) J>e facto collector. A collector of taxes, although he may not have taken an 
oath of office in the manner prescribed by the statute, may be an officer dejacto, so 
far as the public and third persons are concerned, while he retains the office, and 
exercises the duties of it. Gayer v. Andrews, 11 111., 494, 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 147 

to comply with the conditions thereof, file with the county May notify of.i- 
clerk a notice in writing, verified under oath, by the person Jlditiouai 

asking to be discharged, setting forth the facts in the case, security. 
and asking to be released from any further liability on said 
bond ; whereupon the clerk, with whom such notice shall be 
filed, shall notify the said officer to give additional security, 
equal to the security about to be released by the county board, 
which notice may be served by the said clerk, or by any per- 
son appointed by said board or clerk. If the officer so noti- Kemovai of 
fied shall not appear and give additional security within two ofiiccr ' 
days after notification, the county board may remove him 
from office; and in all such cases said board shall appoint 
some person to fill the vacancy occasioned by such removal, 
who shall execute bond, qualify and perform the duties 
required as such officer. 

Sec. 150. If the securities on any collector's bond, or Absconding 
either of them, shall be satisfied, that such collector is making collcctor - 
improper use of the funds collected by him, or has absconded, 
or is about to abscond, from this State, whereby said securities 
may become liable to pay any sum or sum's of money, it shall 
be lawful for said security to sue out a writ of attachment ^ttln^dof 
against the goods and chattels of such collector in like manner security. 
as he would be authorized to do if said collector was person- 
ally indebted to such security; and the money collected on 
any such attachment shall be paid into the State, county, 
town or city treasury, by the officer collecting the same, in 
like manner as if paid over by the collector. - 

Sec. 151. In case of the death of any county collector Death of 
during the time the tax books are in his hands, and before the collector - 
time specified in this act for making settlements, the county 
clerk shall demand and take charge of the tax books. Said 
clerk shall appoint one or more competent persons to examine 
said tax books ; and it shall be the duty of the persons so 
appointed to ascertain the amount remaining uncollected, and 
make out a correct abstract of the same: Provided, that Proviso. 
should there be but a small portion of the taxes collected at 
the time of the death of the collector, then the amount actually 
collected shall be ascertained, an! the same books used in 
completing the collections. 

Sec. 152. Collectors may appoint deputies by an instru- Deputy coi- 
ment in writing, duly signed, and may also revoke any such appoinTed.? w 
appointment at their pleasure; and may require bonds or 
other securities from such deputies, to secure themselves. And 
each such deputy shall have like authority, in every respect, 
to collect the taxes levied or assessed within the portion of the 



148 



REVENUE. 



[div. IV 



county, town, district, village or city assigned to him, which 
by this act is vested in the collector himself; but each col- 
lector shall, in every respect, be responsible to the State, 
county, towns, villages, cities, districts and individuals, com- 
panies or corporations, as the case may be, for all moneys 
collected and for every act done by any of his deputies, whilst 
acting as such, and for any omission of duty of such deputy. 
Any bond or security taken from a deputy, by a collector, 
pursuant to this act, shall be available to such collector, hi3 
representatives and securities, to indemnify them for any loss 
or damage accruing from any act of such deputy. 

Sec. 153. The county clerk, on being requested by any 



Bond of dep- 
uty. 



Warrant 



fumishe^to 115 * co ^ ector ^ shall attach a warrant, under his hand and the seal 
deputy. f Jq S office, to any list furnished by such collector to his dep- 

uty, which warrant shall be in the same manner and form as 
is required to the original collector's list or book, except that 
the amount collected by such deputy shall be paid to the col- 
lector, who shall pay the same over to the proper officers or 
persons. 



MANNEB IX WHICH TAXES ARE TO BE COLLECTED . 



Currency in 
which taxes 
are payable. 




Town collect- 
ors — how to 
proceed. 



Sec. 154. The county revenue shall be collected in gold 
and silver coin, United States legal tender notes, current 
national bank notes, county orders and jury certificates, and 
in no other currency. The revenue for State purposes shall 
be collected in gold and silver coin, United States legal tender 
notes, current national bank notes, and auditor's warrants, 
and in no other currency. State taxes levied for any special 
purpose, other than to defray the ordinary expenses of the 
State government, shall be collected in gold and silver coin, 
United States legal tender notes, current national bank notes, 
and in no other currency. All other taxes shall be collected 
in gold and silver coin, United States legal tender notes, and 
in current national bank notes, and in no other currency, 
unless otherwise specially provided for.(l) 

Sec. 155. Every town collector, upon receiving the tax 
book or books, shall proceed to collect the taxes therein men- 
tioned, and for that purpose shall call at least once on the per- 
son taxed, or at his place of residence or business, if in the 

(1) The mandate of the State to its officers, as to the kind of funds in which the 
ae shall be collected, cannot be disobeyed. Congress has no power over the 
subject. State Treasurer v. Oulteetor of Sangamon Co., 28 111. B., 512. 

Jlonev. whether in the State treasury, or in the hands of the collector, is alike the 
property of the State. The People v. Miner, 46 111. R. 3S5 

Jitj the new constitution, all taxes levied for State purposes, is required to be 
paid into the State treasury. Art. 9, Sec. 7. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 149 

town of such collector, and shall demand payment of the 
taxes charged to him on his property: Provided, that in Proviso, 
counties not under township organization, it shall be the duty 
of the collector to give notice, in a newspaper published in 
the county, if any such newspaper there be, stating when and 
where he will attend in each precinct, for the purpose of 
receiving taxes, and also by causing written or printed notices 
to be posted in three of the most public places in each pre- 
cinct, stating the time, and the place where, he will be in such 
precinct, for the purpose of collecting the taxes therein; which 
said notices shall be published or posted at least ten days 
before the time fixed for the collection of such taxes, and said 
notices shall be deemed a sufficient demand for said taxes. (1) 

Sec. 156. In case any person, company or corporation shall Distress 
refuse or neglect to pay the taxes imposed upon him or them, an 
when demanded, it shall be the duty of the collector to levy 
the same, together with the costs and charges that may accrue, 
by distress and sale of the personal property of the person, 
company or corporation w r ho ought to pay the same. (2) 

(1) A mortgagor or mortgagee in possession is bound to pay the taxes on 
the mortgaged premises, the latter will be allowed therefor on foreclosure of the 
mortgage. Wright et al. v. Langley, 36 111. R.. 381 ; Moore v. Tilman, 44 111. R., 367. 

A party in actual possession of lands under a contract, listed in his name, is per- 
sonally liable for the taxes. Glancey v. Elliott, 14 111. R., 458.. 

An assignee is bound, while the assets remain in his hands for administration, 
to pay the taxes assessed thereon. Ryan v. Gallatin County, 14 111. R., 82. 

A person having a. life estate in lands is bound to pay the taxes thereon dur- 
ing the existence of the estate, unless exempt by the instrument creating the estate. 
Higgins v. Crosby, 40 111. R.. 263 ; Waldo et al. v. Cummings et al., 45 111. R., 421. 

The assignee of a lease for the title of another, is bound to pay all taxes on the 
premises during his tenancy. Prettyman v. Walston, 34 111. R., 192. 

Co-tenants are equally bound to keep the taxes paid, and one who pays all 
taxes can recover of the other for the amount with interest. Morgan et al. v. Her- 
■rick, administrator, etc., et al., 21 111. R., 481 ; Chickering et al. v. Failes, 38 111. R., 342. 

If the taxes are paid by a tenant, it will enure to the benefit of the landlord. If 
bv a trustee, or cestui que trust, to the benefit of the combined legal and equitable 
title claimed. Colfield v. Furry, 19 111. R., 183. 

An administrator is not bound by law to pay taxes on the real estate left by 
the decedent. Stone et al. v. Wood, 16 111. R., 177. . 

Upon the question on whose account and for whom payment of taxes has been 
made, the tax receipts therefor are not conclusive evidence. Like other receipts, 
they are susceptible of explanation. Band v. Scofield,4o 111. R., 168; see case of 
Hichman v. Whetstone, 23 111. R., 188. 

Ordinarily, a party of whom a tax is illegally collected, has an ample remedy at 
law by an action of trespass against the officer collecting it, or by an action of 
assumpsit to recover back the money paid. Cook County v. C. B. & Q. R. R. Co., 35 111. 
R., 467. 

A tax is not an ordinary debt; it takes precedence of all other demands, and 
is a charge upon the property, without reference to the matter of ownership. Dun- 
lop v. County of Gallatin, 15 111. R., 9. 

A tax has been held to be recoverable by action like a debt. Ryan v. Gallatin 
County, 11 111. R., 78; Creps v. Baird. 30 Ohio R., 277. 

(2) The remedy by distress for the collection of taxes is not necessarily exclu- 
sive. The same remedy may be pursued as for the collection of debts. Ryan v. Gal- 
latin County, 14 111. R., 83. A note in the hands of an attorney for collection, the 
property of a delinquent tax-payer, may be reached for the payment of the tax, by 
proceeding as in case of a debt. Opinion Auditor Miner, February 13, 1868. 

A tax creates a lien, and takes precedence of judgments and all other claims, and 
no property is free from levy and sale for the payment thereof. Dennis v. Maynard 
et al., 15 111. R., 481 ; Dunlap v. Gallatin County, 15 111 R., 9. 

Household goods are not exempt from taxation nor from being distrained and 
Fold for taxes. Opinion Auditor Miner, April 18, 1867. Dennis v. Maynard et al., 15 
III. R„ 481. 



150 



REVENUE. 



[diy. IV 



Public notice 
of sale. 



Sec. 157. The collector shall give public notice of the 
time and place of sale, and of the property to be sold, with 
the name of the delinquent, at least five days previous to the 
day of sale, by advertisements, to be posted up in at least 
three public places, in the town or district where such sale is 
auctio y pubUc to be made. Such sale shall be by public auction, and, if 
practicable, no more property shall be sold than sufficient to 
pay the tax, costs and charges due. If the property distrained 
shall be sold for more than the amount of the taxes «and 
charges due, the surplus shall be returned to the person in 
whose possession such property was when the distress was 
made, if no claim be made to such surplus by any other per- 
son. If any other person shall claim such surplus, on the 
ground that the property sold belonged to him, and such 
claim be admitted by the person for whose tax the same was 
distrained, the surplus shall be paid to such owner. 



Surplus. 



Insurance companies are required to pay the tax assessed on them, and collections 
are to be made bv distraint and sale of personal property in the same manner as 
that of other corporations or individuals. Opinion Auditor Lippincott, February 
21, 1870. January 28, 1S70. 

The tax on personal property cannot be carried forward from one year to 
another. If the tax is not paid the property must be distrained and sold unless the 
tax-payer becomes insolvent or has absconded and no property can be found. If 
the tax on personal property liable to tax for former years was omitted to be 
assessed, it should be assessed for the current year as Avell as for the years, foe 
•which it was liable but omitted to be assessed. Opin. Aud. .Lippixcott, Nov. 26, 1869. 

Collectors net only have the power, but it is their imperative duty to sell personal 
propertv for real estate tax, after demand, if they can find any to sell. Opinion 
Auditor Mixer, December 8, 1S68. 

Where irregularities occur in the listing of property, but which do not have the 
effect to render the tax wholly void, the collector, who has distrained for taxes 
unpaid, will not be liable to an action for such irregularity, which is not his fault. 
Exchange Bank Columbus v. Hines, 3 Ohio State R., 1. 

A- township collector has the right to go out of his town and to any place 
within his county to collect any tax, whether real or personal, assessed in his dis- 
trict. See Sec. 68. Opinion Auditor Lippincott, January 7, 1870. 

If the collector shall make a return that he could not find goods and chattels 
whereon to levy and collect the amount assessed, that will be conclusive of the fact 
stated. If the return is false, the officer is responsible. City of Ottawa v. Macy el al., 
20 111. R., 413. 

The collector, in collecting the tax charged upon his list, acts as a ministe- 
rial officer, and is protected by his warrant the same as any other ministerial officer 
would be iu executing process. The rule in such case is, that if a ministerial officer 
executes process, upon the face of which it appears that the court issuing it had not 
jurisdiction of the subject matter or of the person of the defendant, the process will 
afford him no proteetion for acts done under it. But if the subject matter of the 
suit is within the jurisdiction of the court, but there is want of jurisdiction of the 
person, the officer executing the process is not liable, unless the want of jurisdiction 
appears by the process. Therefore, where a county clerk places property, which is 
the subject of taxation, upon the tax list within the proper time and assesses the 
same with a tax, in pursuance of the statute prescribing his duties in this respect, 
but without notice to the party interested, the collector is not a trespasser in the 
collection of such tax, by reason of such want of notice, unless it is disclosed by the 
tax list and warrant, or otherwise personally known to the treasurer. Champaign 
Co. Bank v. Smith, 7 Ohio State R., 42. 

Where irregularities occur in the listing of property, but which do not 
have the effect to render the tax wholly void, the treasurer, who has distrained for 
taxes unpaid, will not be liable to an action for such irregularity, which is not his 
fault. Exchange Bank Columbus v. Hines, 3 Ohio State R.. 1. 

When it becomes necessary for the collector to levy upon and sell the goods 
and chattels of any person for the collection of taxes, it will be lawful for him to 
«ell the same at any time before the time he is required to pay over the money to 
the county treasurer, and other officers mentioned in his warrant, having made a 
levy on or previous to the fifteenth of February. Shelden v. T 'an Buskirk, 2 Comstock 
R., 473. But see post, p. 153, sec. 169. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 151 

Sec. 158. In case any person against whom a tax shall be Removal from 
assessed, under the provisions of this act, shall have removed aSotiie^in 
from one town or district to another town or district in the same county, 
same county without paying such tax, it shall be lawful for 
the collector having the tax books in which such tax is 
charged, to levy and collect such tax of the goods and chattels 
of the person assessed, in any town or district within said 
county to which such person shall have removed, or from 
property of such person wherever the same may be found, in 
said county. 

Sec. 159. In levying on and selling personal property for Rules for levy . 
taxes, the collector shall be governed by the same rules, and jjg and selling 
be entitled to the same fees as constables are or may be for like 
services on executions; but in no case shall any collector 
charge mileage, unless he is compelled to distrain property. 

Sec. 160. In case any person against whom taxes have been Removal from 
levied, under the revenue laws of this State, in any county, count y> etc - 
town, city or district of this State, shall have removed from 
such county, town, city or district, after such assessment has 
been made, and before the collection of the same, the county 
clerk, when directed by the county board, shall issue a war- 
rant under his hand and seal of office, directed to any sheriff, 
coroner or constable of the county, town, city or district to 
which such person may have removed, commanding such offi- 
cer to whom the warrant may be directed to make the amount 
of such tax, together with the costs and charges that may 
accrue, from the personal property of the person owing such 
tax — distraint and sale of property under this section to be sale. 
in the same manner as provided in this act for other cases of 
distraint and sale of personal property. The taxes which may 
be collected under this section shall be disposed of in the manner 
required by this act with respect to taxes collected in any 
other manner. All other parts of this act providing for cases Failure of 
of failure of officers to pay over taxes, shall apply to all offi- officer t0 Pa- 
cers collecting taxes under this section, who fail to pay over 
and correctly account at the proper time and manner for the 
taxes collected by them. 

Sec. 161. The power to levy and collect tax shall con- Power of coi- 
tinue in the county collector after his return and final settle- a ?d°coiiect vy 
ment, until the tax is paid. If personal property of any settlement. 
person who may have been returned by the collector as being 
insolvent or having removed be afterwards found in the county, Property of 
the county clerk shall have power to issue process to the ms0 
sheriff or any constable of his county for the collection of the 
taxes due from such person, together with the costs and charges 



152 



REVENUE. 



[DIV. IV 



that may accrue; and when collected, such taxes shall be paid 
to the county collector and charged to him the same as other 
taxes are required to be charged to him by this act, and to be 
by him accounted for in like manner as such other taxes. 

Sec. 162. The collectors shall receive taxes on part of any 
lot, piece or parcel of land charged -with taxes, -when a partic- 
ular specification of the part is furnished. If the tax on the 
remainder of such lot or parcel of land shall remain unpaid, 
the collector shall enter such specification in his return, so 
that the part on which the tax remains unpaid may be clearly 
known, The tax may be paid on an undivided share of real 
estate. In such case the collector shall designate on his record 
upon whose undivided share the tax has been paid. 

Sec. 163. Whenever any person shall pay the taxes charged 
on any property, the collector shall enter such payment in his 
book, and give a receipt therefor, specifying for whom paid, 
the amount paid, what year paid for, and the property and 
value thereof on which the same was paid, according to its 
description in the collector's book, in whole or in part of such 
description, as the case may be, and such entry and receipt shall 
bear the genuine signature of the collector or his deputy receiving 
such payment, and whenever it shall appear that any receipt for 
the payment of taxes shall be lost or destroyed, the entry so made 
may be read in evidence in lieu thereof. The collector shall 
enter the name of the owner or of the person paying tax, 
opposite each tract or lot of land when he collects the tax 
thereon, and the post-office address of the person paying said 
tax. 



Taxes on part 
may be 
received. 



Undivided 
shares. 



Receipt to be 
given. 



Contents. 



Xarne and P. O. 
address of 

payer. 




SWORN STATEMENTS OP COLLECTIONS TO BE MADE — PAY- 
MENTS. 

Sec. 164. Town and district collectors shall, every thirty 
days when required so to do by the proper authorities of 
incorporated towns, cities and villages, road and school dis- 
tricts, for which any tax is collected, render to said authori- 
ties a statement of the amount of each kind of tax collected 
for the same, and at the same time pay over to such authori- 
ties the amount so shown to be collected. 

Sec. 165. Such town and district collectors shall, every 
thirty days, render a similar account of the taxes payable to 
the State treasury, and of the county taxes, to the county col- 
lector, and at the same time pay over the amount of such 
taxes to said county collector. 

Sec. 166. Said town and district collectors shall pay over 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 153 



the town, road, school and other local taxes, as may be collectors to 
directed in the warrant attached to the collector's book. uxes. ver l0 ° al 

Sec. 167. Each town and district collector shall make final Final settle- 
settlement for the township, district, city, village and town meilt " 
taxes, charged in the tax books, at or before the time fixed in 
this act for paying over and making final settlement for State 
and county taxes collected by them. In such settlements, 
said collectors shall be entitled to credit for the amount of 
their commissions on the amount collected, and for the amount 
uncollected, on the tax books, as may be determined by the 
settlement with the county collector. 

Sec. 108. The officer to whom any such moneys may be Duplicate re- 
paid under the preceding sections, shall deliver to the collector ^JP te for mon ' 
duplicate receipts therefor. 

RETURN OF TOWN AND DISTRICT COLLECTORS TO THE COUNTY 
COLLECTOR, 

Sec. 169. Town and district collectors shall return the tax Myers' e«i.', 

books, and make final settlement for the amount of taxes ^ * , 

placed in their hands for collection, on or before the tenth day Return. 
of March next after receiving the tax book : Provided, that pi-oviso. 
the county collector may first notify, in writing, the several 
towns or district collectors upon what day, within twenty days 
after'the tenth day of March, they shall appear at his office 
to make final settlement. 

Sec. 170. If a town or district collector shall be unable to Failure to 
collect any tax on personal property charged in the tax book, 
by reason of the removal or insolvency of the person to whom 
such tax is charged,- or on account of any error in the tax 
book, he shall, at the time of his final settlement with the 
county collector, make out and file with such collector a state- statement, 
ment, in writing, showing in detail the name of each person 
charged with such tax, the value of the property, and the 
amount of each kind of tax so charged, and the cause of delin- 
quency in each and every case, and shall make oath that the Oath, 
cause of delinquency or error stated in such statement, oppo- 
site the. name of each delinquent therein named, is true and 
correct, that the sums mentioned therein remain unpaid, and 
that he has used due diligence to collect the same ; which 
affidavit shall be signed by the town or district collector. (1) 

(1) TJie affidavit of the town collector as to delinquent personal property, 
where the list shows the cause of inability to collect to have been insolvency or 
removal, is final, when there is no real estate. Opinion Auditor Miner, January 20, 
1868 : City of Ottawa v. Macy, 20 111. R., 423. 

If town collectors make a false affidavit, and thereby receive credit for -personal 



154 



REVENUE. 



[DIV. IV. 



Credit to be 
allowed. 



Voucher. 

Abatements. 



Delinquent 
real estate list. 



Delinquent 
personal prop- 
erty. 



Failure to 
make final set- 
tlement. 



Damages. 



County 
collector to 
give satisfac- 
tion piece. 



Sec. 171. Upon the filing of said list, the county collector 
shall allow the town or district collector credit for the amount 
of taxes therein stated, and shall credit the same to the sev- 
eral funds for which said tax was charged. When the county 
collector makes settlement with the county board, such state- 
ment shall be sufficient voucher to entitle him to credit for the 
amount therein stated, less such amount thereof, if any, that 
may have been collected by him. In no case shall any town 
or district collector, or county collector, be entitled to abate- 
ments for personal property tax until the statement and affi- 
davit are filed. 

Sec. 172. Each town or district collector shall at the same 
time make out and deliver to the county collector a list of the 
real estate in his town or district, on which the taxes remain 
due and unpaid, describing the same as in tax books, giving 
the name of the person to whom listed, and the amount of 
each kind of tax charged thereon, and shall swear to the cor- 
rectness of such list, and that the taxes therein set forth 
remain due and unpaid — which affidavit shall be attached to 
such list. 

Sec. 173. Each town or district collector shall particularly 
note in his returns to the county collector, all cases of per- 
sonal property tax that he was unable to collect, which can be 
made from real estate of the persons owing such tax. 

Sec. 174. If the town or district collector shall fail to 
appear and make final settlement, or pay over the amount in 
his hands when required in this act, the county collector shall 
forthwith cause the bond of such collector to be put in suit, 
and recovery may be had thereon for the sum due, for all 
taxes and special assessments, and twenty -five per cent, 
thereon as damages, with costs of suit. 

Sec. 175. Upon the final settlement of the amount of taxes 
directed to be collected by any collector in any of the towns 

tax due from responsible persons, they should be proceeded against. Opinion Audi- 
tor Miner, May 11, 1868. 

Town collectors can make no corrections or deductions from valuations 
made by the assessor on real or personal property. Inability to collect on account 
of removals or insolvency of the taxpayer are the only causes entitling the collector 
to a credit for the amount of such tax on personal property, in his settlement with 
the county collector. Opinion Auditor Lippincott, February 7, 1870. 

Assessment of personal property creates no lien on the property, alien is 
created by the delivery of the collector's books. Hill et al. v. Figley, 23 111. R., 418. 
It is not thought that a collector can levy on the goods owned jointly or as a com- 
pany for the tax of individuals. The tax is a debt due from the person assessed, and 
is not discharged by the collector's return, delinquent. The board of supervisors 
have authority to cause prosecution for collection. The cause of inability to col- 
lect personal property tax must be shown in each case, and if the affidavit thereto 
is made according to law, the countv treasurer has no discretion, but must allow 
the credit. City of Ottawa v. Macy, 20 111. R., 413. The collector should be allowed 
time to complete any proceedings commenced under his warrant, before the time 
of its expiration. Opinion Auditor Lippincott, February 17, 1869 ; Opinion Auditor 
Miner, May 11, 1868. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 155 

or districts in this State, the county collector shall, if requested, 
give to such collector, or any of his securities, a satisfaction 
^icce in writing. 

Sec. 176. Such satisfaction piece may be recorded in the satisfaction 
recorder's office, and when so recorded, shall operate as a dis- Recorded. 7 be 
charge of the securities and the lien upon the property of the _ . , 4 . 

,, ° ii . iiii Limitation. 

collector, except as to all suits commenced upon such bond 
"within three years after the recording of the same. 

Sec. 177. All real estate upon which the taxes remain due Ji aws } S7 ?- 
and unpaid on the tenth day ot March annually, or at the pst- 204. 
time the town or district collector makes return of his books ^ y~—~' 
to the county collector, shall be deemed delinquent. real estate. 1 

RETURN OF DELINQUENT SPECIAL ASSESSMENTS. 

Sec. 178. When any special assessment made by any city, Lsm 1873, 
town or village, pursuant to its charter, or by any corporate JEUoif d " 

authorities, commissioners or persons, pursuant to law, remain ' *- ' 

unpaid in whole or in part, return thereof shall be made to JeHnquent 
the county collector on or before the tenth day of March next special assess- 
after the same shall have become payable, in like form [s] as men 
returns are made for delinquent land tax. County collectors coiiector?° unty 
shall collect, account for, and pay over the same to the authori- 
ties or persons having authority to receive the same, in like 
manner as they are required to collect, account for, and pay 
over taxes. The county collector may, upon return of delin- 
quent special assessments to him, transfer the amounts thereof 
from such returns to the tax books in his hands, setting clown 
therein, opposite the respective tracts, or lots, in proper col- 
umns to be prepared for that purpose, the amounts assessed 
against such tract or lot. 

Sec. 179. When any special assessment is returned against Demand.; 
property, the taxes upon which shall have been paid to the 
town or district collector, it shall be the duty of the county 
collector to cause demand to be made for the payment of such 
special assessment, or a notice thereof to be sent by mail, or Notlce - 
otherwise, to the owner, if his place of residence is known. 
The certificate of a collector that such demand was made, or 
notice given, shall be evidence thereof. 

Sec. 180. On the application of any person to pay any tax Receipt. 
or special assessment upon any real property, it shall be the 
duty of the county collector to make out to such person a 
receipt, in which shall be noted all taxes and assessments upon Contents, 
such property, returned to such collector and not previously 
paid. 



156 



REVENUE. 



[DIV. IV 



Power of 

county 

Collector. 



Sec. 181. County collectors shall have the same power, 
and may proceed in the same manner for the collection of any 
tax on real or personal property, as is or may be given to 
town or district collectors. 



advertisement for judgment and sale. 




Thiee weeks' 
publication. 



Notice. 



Sec. 182. At any time after the first day of April next 
after such delinquent taxes and special assessments on lands 
and lots shall become due, the collector shall publish an adver- 
ju3gment n f ° r tisement, giving notice of the intended application for judg- 
quenfiands 11 " men t for sale of such delinquent lands or lots, in a newspaper 
published in his county, if any such there be, and if there be 
no such paper printed in his county, then in the nearest 
newspaper in this State to the comity seat of such county. 
Said advertisement shall be once published at least three 
xTeeks previous to the term of the county court at which judg- 
ment is prayed, and shall contain a list of the delinquent 
lands and lots upon which the taxes or special assessments 
-remain due and unpaid, the names of owners if known, the 
total amount clue thereon, and the year or years for which the 
same are due. Said collector shall give notice that he will 

apply to the county court, at the term thereof, for 

judgment against said lands and lots for said taxes, special 
assessments, interest and costs, and for an order to sell said 
lands and lots for the satisfaction thereof; and shall also give 

notice that, on the Monday next succeeding the 

day fixed by law for the commencement of such term of the 
said county court, all the lands and lots for the sale of which 
an order shall be made, will be exposed to public sale at the 
building where the county court is held in said county, for the 
amount of taxes, special assessments, interest and cost due 
thereon; and the advertisement published according to the 
provisions of this section shall be deemed to be sufficient 
notice of the intended application for judgment and of the 
sale of lands and lots under the order of said court. Where 
the publisher of any paper that may have been selected by 
the collector shall be unable or unwilling to publish such 
advertisement, the collector shall select some other newspaper, 
having due regard to the circulation of such paper. (1) 



Place of sale. 



(1) TJie delinquent tax list is not required by law to be published in the 
paper having the largest circulation in the county, or out of it. Opinion Auditor 
iliKEB, March 11, 1S68. 

The publication must be made precisely as directed by law. Scamrnon v. City of 
Chicaao, 40 III. R., 146. 

A2>plication for judgment against delinquent lands, and for an order of sale, 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 157 

Sec. 183. When it becomes necessary to charge the tax on sale of realty 
personal property against real property, the county collector propertyuix. 
shall select for that purpose some particular tract or lots of 
real property owned by the person owing such personal prop- 
erty tax ; and in his advertisement for judgment and sale, 
shall designate the particular tract of lots of real property 
against which such personal property tax is charged, and in 
the list filed for judgment, the same facts shall be shown, and 
the court shall take cognizance thereof, and give judgment 
against such tract or lots of real property, for such personal 
property tax. 

Sec. 184. In all advertisements for the sale of lands and Letters and 
lots for taxes or special assessments, and in entries required ufSln™dver° 
to be made by the clerk of the court or other officer, letters, tisement. 
figures and characters may be used to denote townships, 
ranges, sections, part 3 of sections, lots or blocks, or parts 
thereof, the year or the years for which the taxes were due, 
and the amount of taxes, special assessments, interest and 

may be made to the county court at the June term. The collector is not compelled 
to make it at the May term. Tlve People ex rel. v. Mchols, 49 111. R., 517. 

A notice which omits to state that an order for sale will be applied for when the 
application for judgment is made, is insufficient and subsequent proceedings are 
void. Charles v. Wuugh, 35 111. R., 315. 

The statute form of advertisement must be strictly followed. The omis- 
sion of the title of the collector after his name signed thereto, was held to be 
fatal. Spear v. Ditty, 7 Vt. R., 282. Where ^the notice was for " repairing and build- 
ing bridges," and the tax authorized was for making and repairing roads and build- 
ing bridges, it was held insufficient. Charles v. Waugh, 35 111. R., 315. 

It is not necessary to specify in detail the several classes of tax in the advertise- 
ments of delinquent lands ; this, howeyer, does not apply to the list to be filed with 
the clerk, or the record for judgment, but to the advertisement only. Opinion Audi- 
tor Mixer, March 2, 1867. 

To yive the court Jurisdiction it is not necessary that the collector's notice 
should specify the first day of the term of the court to* which application is made, 
and by authority of section 26 of this act. a discretion is given to the collector to 
select the term of court at which he will make application for judgment, Darks 
et al. v. Miller, Ireasurer, etc., 4S 111. R., 360. 

The law contemplates a pertinent description of the land in the advertisc- 
inent of sale. It should be so described that the owner may know that the tax on 
his land is unpaid, and that purchasers may know the precise land intended. A 
description as 485 acres of a certain tract named, without location, is insufficient. A 
description as 150 acres, part of section 36, northwest corner, is too indefinite and 
defective. A description as 60 acres, part of the north half of sec. 13. is too vague and 
uncertain. A description as % of block 4, in, etc., is void for uncertainty. A 
description as let 11, block 20, Roberts & Randall's addition, with no other descrip- 
tion, except that the notice was headed " Auditor's Office, Ramsay County, Minn., 
St. Paul, December 8, 1862," is insufficient. A sale by such descriptions would con- 
fer no title. Douglas v. Davgerfield, 10 Ohio R., 152 ; Stewart v. Aten, 5 Ohio R, 257 ; 
Lafferly v. Dyers, 5 Ohio R.. 558 . 2 id., 287; 3 id., 272 ; Treon v. Emerick, 6 Ohio R., 391'; 
Burchard v. Hubbard, 11 OhioR., 316; Didurll v. Coleman, 11 Minn. R., 78; Didwell v. 
M 'ebb, 10 Minn. R.,59. 

The county collector has no authority to advertise delinquent lands in subdivi- 
sions different from the assessment. Citing Blackwell on Tax Titles, 330. Opinion 
Attorney General Cole, vol. 1, p. 392. 

Where a lot of land is listed for taxation, together with eight others, and so adver- 
tised for sale, but the assessment of tax is of one aggregate sum on all, a separate 
•sale and conveyance of them is unlawful and confers no title. Wiley v. Scovillc, 9 
Ohio R.. 43. 

A certificate of publication stating that " the foregoing was duly published 
in the Peoria Democratic Press." etc.. immediately following the tax list, will be 
held to refer to such tax list, and it will be presumed that the paper was a news- 
paper. Jackson v. Cummin gs, 15 111. R., 451. 



158 



REVENUE. 



[div. IV. 



Proviso. 




costs ; and the whole of the advertisement shall be contained 
in one edition of such newspaper and its supplement, if such 
supplement is necessary : Provided, that nothing contained 
in this section shall prevent the county collector from subse- 
quently advertising and obtaining judgment on lands or lots 
that may have been omitted through no fault of the collector, 
or that may have been erroneously advertised or described in 
the first advertisement. 

Sec. 185. All applications for judgment and order of sale 
for taxes and special assessments on delinquent lands and lots, 
shall be made at the May term of the county court. If, from 
Application for ail y cause the court shall not be holden at the term at which 

judgment, , J ». . 

judgment is prayed, the cause shall stand continued ; and it 
shall not be necessary to re -advertise the list or notice 
required by law to be advertised, before judgment and sale, 
but at the next regular term thereafter the court shall hear 
and determine the matter; and if judgment is rendered, the 
sale shall be made on the Monday specified in the notice, 
as provided in section one hundred and eighty -two — such 
Monday to be fixed by the county collector in the notice. If, 
for any cause, the collector is prevented from advertising and 
obtaining judgment at said term, it shall be held to be legal to 
obtain judgment at any subsequent term of said court ; but 
if the failure arises by the ccunty collector's not complying 
with any of the requirements of this act, he shall be held on his 
official bond, for the full amount of all taxes and special assess- 



when made 



Proviso. ments charged against him : Provided, that any such failure 

on the part of the county collector shall not be allowed as a 
valid objection to the collection of any tax or assessment, or 
to a rendition of judgment against any delinquent lands and 
lots, included in the application of the county collector : And 
provided, further, that on the application for judgment, at 
such subsequent term, it shall not be deemed necessary to set 
forth or establish the reason of such failure. 

Sec. 186. The printer, publisher, or financial officer or 
ao-ent of the newspaper publishing the list of delinquent lands 
and lots shall transmit, by mail or other safe conveyance, to 
the collector, four copies of the paper containing said list, to 
one of which copies he shall attach his certificate, under oath, 
of the due publication of the delinquent list for the time 
required by law (which copy shall be presented by the collector 
to the county court at the time judgment is prayed), and said 
copy shall be filed as part of the records of said court. Upon 
receipt of said papers, and on demand being made, the col- 

5hen e pald? s ~ lector shall pay to the printer the amount of the fees allowed 



Further pro- 
viso. 



Publisher of 
delinquent 
lists shall send 
four copies to 
collector. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 159 

by law for publishing said list and notice; and it shall be his 
duty to file one copy of said paper in his office, and deliver 
one copy to the auditor, and one copy to the State treasurer, 
who shall file and safely preserve them in their respective 
offices. 

Sec. 187. In all cases -where there is an error in the adver- Error in adver- 
tised list, the fault thereof being the printer's, which prevents tlsed llst * 
judgment from being obtained against any tracts or lots, or 
against all of said delinquent list, at the time stated in the 
advertisement that judgment will be applied for, the printer 
shall lose the compensation allowed by this act, for such erro- 
neous tracts or lots, or entire list, as the case may be. 

Sec. 188. The collector shall file with the county clerk the collector to me 
list of delinquent lands and lots, which shall be made out in q£ent lands! 
numerical order, and contain all the information necessary to 
be recorded at least five days before the commencement of the 
term at which application for judgment is to be made, and 
said clerk shall receive and record the same in a book to be 
kept for that purpose ; which said book shall set forth the 
name of the owner, if known, the proper description of the 
land or lot, the year or years for which the tax or special 
assessment is due, the valuation upon which the tax is 
extended, the amount of each kind of tax or special assess- 
ments, the costs and total amount charged against such land 
or lot 

Sec. 189. Any person owning or claiming lands or lots claimant of 
advertised for sale, as provided in this act, may, in person or f a nds. tlse 
by agent, pay the taxes, special assessments, interest and costs 
due thereon to the county collector of the county in which 
the same are situated, at any time before sale. 

Sec. 190. On the first day of the term at which judgment Report of 
on delinquent lands and lots is prayed, it shall be the duty of delin <i uent list - 
the collector to report to the clerk all the lands or lots, as the 
case may be, upon which taxes and special assessments have 
been paid, if any, from the filing of the list mentioned in the 
foregoing section up to that time ; and the clerk shall note the 
fact in the book in which the clerk has recorded the list oppo- 
site each tract upon which such payments have been made. 
The collector, assisted by the clerk, shall compare and correct 
said list, and shall make and subscribe an affidavit, which shall 
be, as nearly as may be, in the following form : 

I, , collector of the county of , do hereby solemnly Form of 

swear lor affirm, as the case may be] that the foregoing is a true and affidavit. 
correct record of the delinquent lands and lots within the county of 
, upon which I have been unable to collect the taxes, (and 



1G0 



REVENUE. 



[div. IV. 



special assessments, interest and printers' fees, if any,) charged thereon, 
as required by law, for the year or years therein set forth ; that said 
taxes now remain due and unpaid, as I verily believe. 

Said affidavit shall be entered on the record at the end of 
the list, and signed by the collector. (1) 

JUDGMENT. 



Laws 1873, 
Myers' ed.. 
Pg. 204. 



Objections to 
judgment. 



Judgmnct. 



Sec. 191. The court shall examine said list, and if defense 
(specifying, in writing, the particular cause of objection) be 
offered by any person interested in any of said lands or lots, 
to the entry of judgment against the same, the court shall 
hear and determine the matter in a summary manner, without 
pleadings, and shall pronounce judgment as the right of the 
case may be. The court shall give judgment for such taxes and 
special assessments and penalties as shall appear to be due, 
and such judgment shall be considered as a several judgment 
against each tract or lot , or part of a tract or lot, for each bind 
of tax or special assessment included therein ; and the court 
shall direct the clerk to make out and enter an order for the 
sale of such real property against which judgment is given, 
which shall be substantially in the following form : (2) 

(1) A return or report by the collector of taxes before the sitting of the court to 
which it is by law directed to be made, will be good. Jackson v. Cummiugs, 15 111. 
E., 450. . 

The provision requiring ' the affidavit of the collector to be entered at the bot- 
tom of the record, would probably be answered if entered in the record, although not 
exactly or technically at the bottom. Winder v. Sterling, 7 Ohio R., 2 post 190. 

(2) A judgment for tares, ic7i ich fails to sJiotc the amount of taxes for which 
it is rendered, is fatally defective. The use of numerals, without some mark or 
word indicating for what they stand, is insufficient, and cannot be explained by 
referringiito other judgments entered in a corresponding manner at different times. 
Lane y.b'ommchnann. 21 111. R., 143; Elston et al. v. Kennicolt et al.,4.6 111, R., 189; 
Chickering et al. v. Failes et al., 38 111. R., 342. 

Where a precept and judgment is referred to, to sustain a tax sale, the amount 
should definitely appear in the judgment. An error in the precept might be cor- 
rected; but uncertainty as to judgment is fatal. If the judgment is for different 
taxes, there should be certainty as to each, Eppinger v. Kirby et ux., 23 111. R., 521. 

A specific or general judgment for cost in a suit for taxes, as in ordinary cases, is 
good. Jackson v. Cummings, 15 111. R., 452; Merritt et al. v. Thompson, 13111. R., 727. 

Judgment can be rendered only for the amount specified in the collector's notice, 
The People ex rcl. v. Nichols, 49 111. R., 517. 

The tcant of the dollar marls in the assessment roH, to designate the amount 
of the valuation or the taxes, will not render the assessment or the collector's war- 
rant invalid and illegal. Elston et al. v. Kennicoit et al., 46 111. R., 189. 

A judgment cannot be rendered for taxes, a part of which are shown by the record 
to be illegal. Campbell ti al. v. Peoper, 41 111. R., 454. 

Where material omissions occurred in the record of a judgment, a correction at a 
subsequent term of the court was su-tained. Atkins v. Kinman, 2 Gilm. R., 450. 

A judgment rendered on a day prior to that named in the collector's notice, or 
where the report of the collector does not comply with the law, is void. Pickett v. 
Martsock, 15 111. R., 282. 

The county court has jurisdiction to render judgment against delinquent 
lands, for taxes, at any regular term after April in each year. The statute has not 
limited the rendition of jndgment to the first Monday of May ; nor does it, in terms, 
require that it shall be at that or any particular term. Stilwell et al. v. People, 49 Iih 
R., 45; Opinion Auditor Mixer, January 20, 1867. 

Where ajyplication was made for judgment at the June term of the county 
court, and the court refused to enter judgment because the list had not been filed 
five days, and a new application was made to the.next August term- Held, that the 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 161 

Whereas due notice has been given of the intended application Form of ordcr 
for a judgment against said lands and lots, and no sufficient defense for sale, 
having been made, or cause shown why judgment should not be 
entered against said lands and lots, for the taxes ( special assess- 
ments, if any), interest, penalties and costs due and unpaid thereon 
for the year "or years herein set forth, therefore it is considered by 
the court that judgment be and is hereby entered against the afore- 
said tract or tracts, or lots of land, or parts of tracts or lots, as the 
case may be, in favor of the People of the State of Illinois, for the 
sum annexed to each, being the amount of taxes (and special assess- 
ments, if any), interest, penalties and costs due severally thereon; 
and it is ordered by the court that the said several tracts or lots of 
land, or so much of each of them as shall be sufficient to satisfy the 
amount of taxes (and special assessments, if any), interest, penalties 
and costs due severally thereon ; and it is ordered by the court that 
the said several tracts or lots of land, or so much of each of them as 
shall be sufficient to satisfy the amount of taxes (and special assess- 
ments, if any), interest, penalties and costs annexed to them sev- 
erally, be sold as the law directs. 

Said order shall be signed by the judge. In all judicial Order signed 
proceedings of any kind, for the collection of taxes and byjudge * 
special assessments, all amendments may be made which, by 
law, could be made in any personal action pending in such 
court, and no assessment of property or charge for any of 
said taxes shall be considered illegal on account of any irreg- irregularities 
ularity in the tax lists or assessment rolls, or on account of in llst3 or rolls - 
the assessment rolls or tax lists not having been made, com- 
pleted or returned within the time required by law, or on 
account of the property having been charged or listed in the 
assessment or tax list without name, or in any other name 
than that of the rightful owner ; and no error or informality 
in the proceedings of any of the officers connected with the 
assessment, levying or collecting of the taxes, not affecting 
the substantial justice of the tax itself, shall vitiate, or in any 
manner affect the tax, or the assessment thereof; and any 
irregularity or informality in the assessment rolls or tax lists, 
or in any of the proceedings connected with the assessment or 
levy of such taxes, or any omission or defective act of any 
officer or officers connected with the assessment or levying of 
such taxes, may be in the discretion of the court corrected, 
supplied and made to conform to law by the court, or by the 
person (in the presence of the court) from whose neglect or 
default the same was occasioned. 

refusal at the June term, not having been on the merits, formed no bar to rendering 
a judgment on the second application. Slilwell it al. v. People, 49 111. R., 45. 

There may be considerable doubt whether the county court has any right to go 
behind the list compared and corrected by the collector and clerk, unless some per- 
son interested in the lands included therein, appears and objects to tbe entry of 
judgment. Unless such is the case, the court is not required to determine whether 
the antecedent proceedings are regular. Opinion Auditor Lippincott, November 
12, 18G9. An appearance in such a case does not have the effect to waive a material 
defect in the proceedings. The People ex rel. v. Nichols, 49 111. R, 517. 



162 



REVENUE. 



[DIV. IV. 



Appeals. 
Bond. 



County board 
may appeal. 



Judgment 
against lands 
on appeal. 

Duty of circuit 
clerk. 



Process for sale 



Notice of sale. 



Dismissal of 



Sec. 192. Appeals from the judgment of the court may be 
taken during the same term to the circuit court of the county 
on the party praying the appeal executing a bond to the peo- 
ple of the State of Illinois, with two or more sureties, to be 
approved by the court, in double the amount of the judgment, 
conditioned that the appellant will prosecute his said appeal 
with effect, and will pay the amount of any tax, assessment 
and costs, which the circuit court on the trial of the appeal 
may render against any real estate embraced in such appeal. 
The county board or proper authorities of any city, village or 
town, or other authority or person to whom any tax or assess- 
ment is payable, may, in like case, appeal to the circuit court 
without giving bond. 

Sec. 193. If judgment shall be rendered against any par- 
ticular lot, piece, parcel or tract of land embraced in such 
appeal, it shall be the duty of the clerk of said circuit court, 
in all cases of appeal, to make and deliver to the county clerk 
a record of the lands and lots against which judgment is ren- 
dered, substantially as is provided for county clerks in section 
one hundred and ninety-four of this act ; which record, when 
filed in the office of said county clerk, shall be the process on 
which such real estate, or any interest therein, shall be sold 
for such taxes or assessments, as well as the record for the sale 
thereof, and it shall be the duty of the county collector, 
assisted by the county clerk, to proceed and sell the same, for 
the amount of such judgment and costs, in the manner provi- 
ded where judgment is rendered by the county court against 
delinquent real estate. The collector shall publish a general 
notice of such sale, in a newspaper published in his county, if 
any such there be ; and if there be no such paper published in 
his county, then in the nearest newspaper published in the 
state to the county seat of such county — said notice to be so 
published once in such newspaper at least three weeks previous 
to the day fixed for such sale. Upon the dismissal of any 
appeal, and upon filing in the office of the county clerk a cer- 
tified copy of the order of such dismissal, the county clerk 
shall make a record of the lands and real estate embraced in 
the appeal, which shall be the process on which such real estate 
embraced in such appeal shall be sold ; and it shall be the 
duty of the county collector to proceed to sell the same in the 
manner provided hereinbefore in cases of judgment being ren- 
dered against real estate by the circuit court on the trial of an 
appeal, and all the provisions of law shall apply to such sale, 
as in other cases. 



DIV. IV.] SESSMBNT AND COLLECTION OF TAXES. 1(33 

SALE OF DELINQUENT LANDS. 

Sec. 194. The county clerk shall, before the day of sale, saieof 
make a record of the lands and lots against which judgment lands? 1101 " 
is rendered, which shall set forth the name of the owner, if 
known, the description of the property, the total amount of 
judgment on each tract or lot, and the year or years for which 
the same is due, in the same descriptive order as said property 
may be set forth in the judgment book, and shall attach thereto 
a copy of the order of the court, and his certificate that such 
record is correct. Said record, so attested, shall be the pro- Record as 
cess on which all real property, or any interest therein, shall process - 
be sold for taxes or special assessments, as well as the record 
for the sale of such property. (1) 

Sec. 195. On the day advertised for sale, the collector shall Report of taxes 
report to the county clerk a list of all lands and lots upon fragment, 
which taxes and special assessments have been paid after the 
rendition of judgment ; and said clerk shall note the fact of 
such payment opposite such tracts or lots upon the record 
aforesaid. (2) 

Sec. 196. The county clerk, in person or by deputy, shall county clerk to 
attend all sales of real estate for taxes, made by the collector, attend sales ' 
and shall assist at the same. 

Sec. 197. When any tract or lot shall be sold, it shall be Entry of sale. 
the duty of the clerk to enter on the record aforesaid, the 
quantity sold and the name of the purchaser, opposite such 
tract or lot, in the blank columns provided for that purpose ; 
and when any such property shall be redeemed from sale, the Redemption. 
clerk shall enter the name of the person redeeming, the date, 
and amount of redemption, in the proper column. 

Sec. 198. The book for such record shall be furnished at ^^S^by 
the expense of the county, and be so ruled that there shall be county, 
suitable blank columns for entering the quantity or portion of 
each tract or lot that may be sold, the name of the purchaser, 
and such other columns as may be deemed necessary. 

(1) TTie precept or certified copy of judgment on -which sale is made for non- 
payment of taxes, is not process in the strict sense of the word, and need not run in 
the name of the people. Curry v. Hinman, 11 III. R. 424 : Scarritt v. Chapman, 11 111. 
R., 414. 

The notice of application for judgment and sale stands as process, and must be 
regular in all respects. Scammon v. City of Chicago, 40 111. R., 146. 

The county court has authority to render judgment for taxes without the presence 
of the two county justices. See ante, art. 18, § 2, p. 210. Parks et al. v. Miller, etc., 4S 
111. R., 360. 

(2) Where the report of the collector simply shows the total amount of taxes due, 
without specifying whether the delinquent tax was due to the state or county, such 
error Is fatal, and the purchaser at the tax sale can acquire no title. Fox v. Turtle, 
55 111., 377. 



104 



REVENUE. 



[DIV. IV. 



Forfeited 
property. ■ 

" Sale and 

rademption 

record." 



Collector to 
attend sale of 
real estate. 



Time of sale. 



Purchaser — 
part sold. 



Sec. 199. All tracts or lots forfeited to the State at such 
sale, as hereinafter provided, shall be noted on said record. 

Sec. 200. Said book shall be known and designated as the 
" Sale and Redemption Record," and be kept in the office of 
the county clerk. 

Sec. 201. The collector, in person or by deputy, shall 
attend at the court house in his county, on the day specified 
in the notice for the sale of real estate for taxes, and then and 
there, between the hours of ten o'clock in the forenoon and 
four in the afternoon, proceed to offer for sale, separately, and 
in consecutive order, each tract of land or town or city lot in 
the said list on which the taxes, the special assessments, inter- 
est or costs have not been paid. The sale shall be continued 
from day to day, until all the tracts or lots in the delinquent 
list shall be sold or offered for sale.(l) 

Sec. 202. The person at such sale offering to pay the 
amount due on each tract or lot, for the least quantity thereof, 



(1) It is the dxvty of the collector at tax sale to offer the tracts and lots sepa- 
rately, and to collect the taxes at the least possible loss to the owner. To allow a 
person to select from the list a portion of the delinquent lands, and become the 
purchaser of the whole for the tax due, without competition, is fraudulent. Brown 
etal. x. Hogle et al., 30 111. R., 120. 

In the sale of lands for taxes, the law must be strictly pursued in all its material 
requirements, or the sale will be invalid. Lane v. Bommelmann, 21 111. R., 143; 
Holbrook v. Dickinson, 46 id., 285. 

Where the law authorizing a tax is unconstitutional, a tax sale under it is void, 
and the case will be treated as if no assessment had ever been made. Holbrook v. 
Dickinson, 46 111. R., 285 ; Springer v. Rossetter et al., 47 id., 223. 

A valid tax sale, after a deed is acquired, passes a new and perfect title to the 
purchaser. It is superior in its nature to title under an ordinary sheriff's deed. 
Atkins v. Ilinman, 2 Gilm. R., 449. 

It is fraud for a tenant in common to permit lands held in common to be sold for 
taxes, and become himself the purchaser. Brown et al. v. Hogle et al., 30 Iil.R., 119. 

When a tax sale is not legally conducted, it works no forfeiture to the owner, and 
no rights are acquired. Conway v. Cable et al., 37 111. R., 82. 

The omission of essential acts in conducting a tax sale cannot be cured by 
legislative enactments so as to render the sale valid. And where the officers con- 
ducting the sale agree w r ith the purchaser to receive a part only of the amount of 
taxes due, the agreement is illegal. Conway v. Cable et al., 37 111. R., 82. 

Lands must be sold as listed. If a block of town lots are listed as one block, 
they must be sold in a body and redeemed in a body ; but in a case of a large num- 
ber'of town lots, held for purposes of speculation, the owner may not be able to 
redeem all, or for special reasons may desire to redeem a part. In summary 
proceedings this light is preserved to the owner. Opinion Attorney General Cole, 
(Minn.) vol. 1, p. 400. 

A ]>ureJiaser at a sale, having an interest in the land as heir, acquires no 
additional title ; nor does a person claiming title to land which is listed in his name, 
acquire any greater interest by permitting it to be sold for taxes and becoming the 
purchaser. Chotcau v. Jones et al., 11 111. Ii., 322. Nor can a mortgagor, by. such an 
act, defeat the lien of the mortgage. The purchase by him at tax sale will be 
regarded as payment of taxes. Frye v. Bank of Illinois, 11 111. li., 383 ; Moore v. ' 
Titman, 44 id., 367. 

An agent for the payment of taxes on lands, who allows them to be sold, and 
becomes the purchaser, will hold the lands as trustee for his principal. Burton et 
al. v. Moss, 32 111. R., 50. 

A. person hawing an agreement for the conveyance of certain lands, in which 
he is obliged to pay the taxes, acquires no title by allowing them to be sold and 
becoming the purchaser. The act will be regarded as mere payment of taxes. 
Oliver el al. v. Croswell, 42 111. R.. 42. 

The purchaser at a sale of a portion of a lot is entitled to have such fraction 
listed and assessed separately, so that he may pay the taxes thereon. Boby v. City 
of Chicago, 48 111. R., 130. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 165 

shall bo tliG purchaser of such quantity, which shall be taken 
from the east side of such tract or lot. 

Sec. 203. Every tract or lot so offered at public sale, and Forfeited to 
not sold for want of bidders, shall be forfeited to the State of state ' 
Illinois. 

Sec. 204. If any collector, by himself or deputy, shall fail to Failure of dep- 
attend any sale of lands or lots advertised according to the pro- " a \^ t0 attend 
visions of this act, and make sale thereof as required by law, he 
shall be liable to pay the amount of taxes, special assessments Liability. 
and costs due upon the lands or lots so advertised. Said col- 
lector may afterwards advertise and sell such delinquent prop- 
erty to reimburse himself for the amount advanced by him ; 
but at no such sale shall there be any property forfeited to 
the State. 

Sec. 205. If any county clerk shall fail to attend any tax Failure of 
sale of real estate, either in person or by deputy, or to make attenofsai? t0 
and keep the record, as required by this act, he shall forfeit 
and pay the sum of five hundred dollars, and shall be liable to 
indictment for such failure, and upon conviction shall be 
removed from office. Said sum shall be sued for in an action penalty— how 
of debt, in the name of the People of the State of Illinois, ^covered, 
and when recovered shall be paid into the county treasury. 

Sec. 206. The person purchasing any tract or lot, or any Purchaser t0 
part thereof, shall forthwith pay to the collector the amount P a y forthwith. 
charged on such tract or lot, and on failure so to do, the said 
tract or lot shall be again offered for sale in the same manner 
as if no such sale had been made ; and in no case shall the 
sale be closed until payment is made, or the tract or lot again 
offered for sale. 

Sec. 207. The county clerk, on being requested so to do, shall county clerk 
make out and deliver to the purchaser of any lands or lots tKteof pur- 
sold as aforesaid, a certificate of purchase, to be countersigned chase - 
by the collector, describing the land or lot sold as the same 
was described in the delinquent list, date of such sale, the 
amount of taxes, special assessments, interest and costs for 
which the same was sold, and that payment has been made 
therefor. If any person shall become the purchaser of more 
than one tract or lot, he may have the whole or one or more 
of them, included in one certificate. Such certificate of pur- certificate 
chase shall be assignable by indorsement, and an assignment f^fj^ment 7 
thereof shall vest in the assignee, or his legal representatives, 
all the right and title of the original purchaser. 

Sec. 208. The county clerk is hereby authorized to make index to tax 
an index to tax sale records in a book, when furnished by the r "' 
county — which index shall be kept in the county clerk's office 



166 REVENUE. [DIV. IV. 

as a public record, open to the inspection of all persons dur- 
ing office hours. 

CERTIFIED COPY OF SALE LISTS TO BE SENT TO AUDITOR. 

Transcript of Sec. 209. The county clerk shall, within twenty days after 
sales. an y ga j e f or taxes, make out and transmit to the auditor a 

transcript of sale for taxes, which shall be written on foolscap 
paper, made up and stitched in book form, suitable . for bind- 
ing. The clerk shall certify to the correctness of said tran- 
script, under the seal of his office. Said list shall not include 
Failure to fur- any tracts of lots forfeited to the State at such sale. The 
msh— penalty. count y c \ eY \ y for failure to make out, furnish or forward said 
list, as herein required, shall forfeit and pay into the State 
treasury the sum of five hundred dollars, to be recovered in 
an action of debt, in the name of the People of the State of 
Illinois, in any court in this State having competent jurisdic- 
tion. 

REDEMPTION. 

Sec. 210. Real property sold under the provisions of this 
act may be redeemed at any time before the expiration of two 
years from the date of sale, by payment in legal money of 
the United States, to the county clerk of the proper county, 
the amount for which the same was sold, and twenty-five per 
cent, thereon if redeemed at any time before the expiration 
of six months from the day of sale ; if between six and 
twelve months, fifty per cent. ; if between twelve and eighteen 
months, seventy -five per cent.; and if between eighteen 
months and two years, one hundred per cent, on the amount 
for which the same was sold. The person redeeming shall 
also pay the amount of all taxes and special assessments 
accruing after such sale, with ten per cent, interest thereon, 
from the day of payment, unless such subsequent tax or 
special assessment has been paid by or on behalf of the per- 
son for whose benefit the redemption is made, and not by the 
purchaser at the tax sale, or his assignee. If the real prop- 
erty of any minor, heir, idiot or insane person be sold for non - 
payment of taxes or special assessments, the same may be 
redeemed at any time after sale and before the expiration of 
Fersons under one Year a ^ ter sucn disability be removed, upon the terms 
disability- ' "specified in this section, and the payment of ten per cent., per 
annum, on double the amount for which the same was sold, 
from and after the expiration of two years from the date of 
sale ; which redemption may be made by themselves, or by 



Limitation 
term. 



Subsequent 
taxes. 



when to re 
deem. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 1G7 

any person in their behalf. Tenants in common or joint ten- joint tenants 

ants shall be allowed to redeem their individual interest in common. 11 ts in 

real property sold under the provisions of this act, in the 

same manner and under the terms specified in this section for 

the redemption of other real property. Any redemption 

made shall inure to the benefit of the person having the legal 

or equitable title to the property redeemed, subject to the 

right of the person making the same to be reimbursed by the 

person benefited.(l) 

Sec. 211. If any purchaser of real estate, sold for taxes or Land re-soM 
special assessment, shall suffer the same to be again sold for lasVdayof etore 
taxes or special assessments before the expiration of the last day 2f ° nd annuai 
of the second annual sale thereafter, such purchaser shall not be 
entitled to a deed for such real property until the expiration of 
a like term from the date of the second sale, during which time 
the land shall be subject to redemption upon the terms and con- 
ditions prescribed in this act, but the person redeeming shall enly 
be required to pay, for the use of such first purchaser, the amount 
paid by him. The second purchaser shall be entitled to the 
redemption money, as provided for in the preceding section. 

Sec. 212. The books and records belonging to the office of Books and 
the county clerk, or copies thereof, certified by said clerk, shall 7a«'e d eVidence. 
be deemed prima facie evidence to prove the sale cf any land or 
lot for taxes or special assessments, the redemption of the same, 
or payment of taxes or special assessments thereon. The 
county clerk shall, at [the] expiration of his term of office, pay 
over to his successor in office all moneys in his hands received 
for redemption from sale for taxes on real estate. 

(1) On paying redemption mone?/ it is deemed absolutely necessary for the clerk 
to require the surrender of the certificate as a condition precedent to paying over 
the money. Or, in lieu of the certificate, satisfactory proof by affidavit of the loss or 
destruction thereof, without transfer or assignment. Opinion Auditor Miner, May 
29, 1868. 

When, under claim and color of title all the taxes legally assessed are paid for 
the full period of limitation a bar is created to the redemption of any portion of 
the property. Chickering et al. v. Failes ex rel. et al., 38 111. R., 342. 

The provisions of the limitation act of 1839 empowering minors to redeem land 
sold for taxes, within three years after attaining their majority, by paying to the 
person who has paid the tax, the amount with interest, do not take from them the 
right to redeem within one year after his majority, by paying double the amount, 
etc., to the collector. Holioway et al. v. Clark, 27 111. R., 488. 

In tlie redemption of land belonging to infants, if the clerk has failed to file 
the affidavit by which the right to redeem was established, the right to redeem may 
be shown if the validity of the redemption is questioned. Chapin v. Cortenius et al., 
15 111. R.. 432. 

Under the revenue law of 1845 lands sold for taxes were redeemable, within 
two years by the payment of double the amount for which they were sold, all taxes 
accruing after such sale, with six per cent, interest on such paid taxes, if any were 
paid, from the first day of May in each year up to the time of payment. The act of 
1853, amendatory thereof, changes the rate of interest from six to ten per cent., but 
fixes no certain day from which it shall be computed, except that it shall be from the 
day of sale, whenever that may be. The " day of sale" here alluded to is the day 
on which a sale might take place in each year, if the subsequent taxes were not 
paid, and not the day of the first sale under which the tax purchaser claims. If 
the purchaser pays no subsequent taxes he can claim no interest. Comstock v. Cover, 
35 111. R., 470. 



168 REVENUE. [DIY. IV. 

Tracts sold Sec. 213. Whenever it shall be made to appear, to the satis- 

erroneousiy. f ac tion of the county clerk, that any tract or lot was sold which 
was not subject to be taxed, or upon which taxes or special 
assessments had been paid previous to the sale, he shall make 
an entry opposite to such tracts or lots in the sale and redemp- 
tion record that the same was erroneously sold, and such entry 
shall be prima facie evidence of the fact therein stated. 
Purchaser at Sec. 214. When the purchaser at such erroneous sale, or 
recovSunoSit an J one holding under him, shall have paid any tax or special 
tax. assessment upon the property so sold, which has not been paid 

by the owner of [the property, he shall have the right to re- 
cover from such owner the amount he has so paid, with ten per 
cent, interest, as money paid for the owner's use. 
Receipt of Sec. 215. The receipt of the redemption money of any tract 

money P opSate8 °^ -^ anc ^ or ^ ot ' ^J an y purchaser, or the return of the certificate 
as release. of purchase for cancelation, shall operate as a release of all the 
claim to such tract or lot, under or by virtue of the purchase. 

TAX DEEDS. 

Tax deeds. Sec. 216. Hereafter, no purchaser or assignee of such pur- 

chaser of any land, town or city lot, at any sale of lands or lots 
for taxes or special assessments due, either to the State or any 
county or corporated town or city within the same, or at any 
sale for taxes or levies authorized by the laws of this State, shall 
be entitled to a deed for the lands or lots so purchased, until 

when the following conditions have been complied with, to wit : Such 

purchaser is -, ° 7 -,-, 1 ■, 1 

entitled to a purchaser or assignee snail serve, or cause to be served, a writ- 
deed " ten or printed, or partly written and partly printed notice of 

such purchase on every person in actual possession or occupancy 
of such land or lot, and also the person in whose name the 
same was taxed or specially assessed, if, upon diligent inquiry, 
How to proceed ^ e can ^ Q f oun( j j n fae county, at least three months before 
the expiration of the time of redemption on such sale, in which 
notice he shall state when he purchased the land or lot, in 
whose name taxed, the description of the land or lot he has 
purchased, for what year taxed or specially assessed, and when 
the time of redemption will expire. If no person is in actual 
possession or occupancy of such land or lot, and the person in 
whose name the same was taxed or specially assessed, upon 
diligent inquiry, cannot be found in the county, then such 
person or his assignee shall publish such notice in some news- 
paper printed in such county, and if no newspaper is printed 
in the county, then in the nearest newspaper that is published 
in this State to the county seat of the county in which such land 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 169 

or lot is situated ; -which notice shall be inserted three times, 
the first time not more than five months, and the last time not 
less than three mouths before the time of redemption shall 
expire. (1) 

Sec. 217. Every such purcnaser or assignee, by himself or purchaser or 
agent, shall, before he shall be entitled to a deed, make an male affidavit 
affidavit of his having complied with the conditions of the for deed - 
foregoing section, stating particularly the facts relied on as 
such compliance, which affidavit shall be delivered to the per- 
son authorized by law to execute such tax deed, and which 
shall by him be filed with the officer having custody of the 
record of the lands and lots sold for taxes and entries of 
redemption in the county where such lands or lots shall lie, to 
be by such officer entered on the records of his office, and 
carefully preserved among the files of his office, and which 

(1) A purchaser of land at tax sale is not entitled to a deed until the lapse of two 
years; a deed given before that time is not notice to the grantee of the purchaser, of 
the illegality. A tax deed may be good as color of title, although not so as per- 
manent title. Bowman v. Wetting, 39 111. R., 418. 

A tax title is -purely technical, as contradistinguished from a meritorious title, 
and depends for its validity upon a strict compliance with the statute; and any 
omission, as the seal of the officer making it, will not be corrected by a court of 
chancery. Altes v. Hincldee et al., 36 111. R., 265. 

A tax deed is sufficient to show claim and color of title, if it appears on its face to be 
regular. The person relying upon it for that purpose is not bound to show that the 
pre - requisites of the statute have been complied with. Holloway et al. v. Clark, 27 111. 
R., 4S6. 

If an officer executes a deed for land under a sale for taxes, without notice having 
been given to the person in whose name the land was taxed, by personal service 
thereof if he resides in the county, or, if not, then by publication, informing him of 
the time of the sale, and when the time for redemption will expire, such deed will be 
inoperative to convey a title. And proof that such notice has been given is essential 
to the admissibility of a tax deed in evidence. Holbrook v. Fellows, 38 111. R., 440. 

In an action of ejectment, where the plaintiff relied upon a tax deed, the defend- 
ant sought to prove that the taxes, for the alleged non-payment of which the land 
had been sold", had been paid before the sale, and offered a receipt for such taxes 
from the collector for "teety-seven dollars." The receipt also contained a column 
headed " total tax," which footed up, in figures, $27. This was sufficient as explaining 
what "teety-seven dollars" meant. Daniels v. Burso, 40 111. R., 307. 

Where the defendant.'in ejectment, nresisting a tax title, repels the presumption 
by proof that the lancv in controversy has been duly listed, the plaintiff will be 
required to prove, affirmatively, that there was a proper listing. Schuyler et al. v. 
JIdll. 11 111. R., 465 : Tibbelts v. Job et al., 11 111. R., 460. 

A party seeking to substantiate a tax title must exhibit '.first, a valid judg- 
ment against fhe land ; second, a valid precept authorizing the officer to make the 
sale ; and, third, a proper conveyance of the land from the sheriff. These are [essen- 
tial to fhe validity of the title, and none of them can be dispensed with. Atkins v. 
Hinrnan, 2 GTrtm. R., 448. 

Tlte construction of a tax deed in respect to the description of the land con- 
veyed, must be the same as if such description were used in a deed between private 
individuals. The doctrine of strict construction, as applied to the execution of 
naked statutory powers, has no application in such cases. Blakely v. Beslor, 13 131. R. t 
715. 

Courts of chancery tvill not take jurisdiction to try the validitv of tax titles, 
on the grounds that they are a cloud. Springer v. Rosette et al., 47 111. R., 223. 

A deed of land sold for taxes under the revenue law of 1839, made either by the 
officer making the sale or his successor in office, is valid. Bestor v. Poivell et al., 2 
Gilm. R., 727. 

An auditor's deed to land, made in pursuance of a sale for taxes, under the law of 
1827, will not show a complete title in a party, without proof that the pre-requisites 
of the law have been complied with. Irving v. Brownell, 11 111. R., 411. It has been % 
held that if any portion of a tax upon which a judgment was rendered, was 
illegal, or ifthe judgment was for too large a sum. even to the extent of a few cents 
a sale and tax deed based upon such judgment, would be void. McLaualdinx. 
Thompson, 55 111. R., 249. 



170 



REVENUE. 



[DIV. IV. 



Person having 
the right to 
redeem shall 
pay printer's 
fee. 



Deed given in 
two years from 
date of sale. 



record or affidavit shall be prima facie evidence that such 
Perjury. notice has been given. Any person swearing falsely in such 

affidavit, shall be deemed guilty of perjury, and punished 
accordingly. 

Sec. 218. In case any person shall be compelled to publish 
such notice in a newspaper, then, before any person who may 
have a right to redeem such lands or lots from such sale shall 
be permitted to redeem, he shall pay the officer or person who 
by law is authorized to receive such redemption money, the 
amount paid for printer's fee for publishing such notice, for 
the use of the person compelled to publish such notice as 
aforesaid ; the fee for such publication shall not exceed one 
dollar for each tract or lot contained in such notice. 

Sec. 219. At any time after the expiration of two years 
from date of sale of any real estate for taxes or special assess- 
ments, if the same shall not have been redeemed, the county 
clerk, on request, and on the production of the certificate of 
purchase, and upon compliance with the three preceding sec- 
tions, shall execute and deliver to the purchaser, his heirs or 
assigns, a deed of conveyance for the real estate described in 
such certificate. 

Sec. 220. When any person shall hold more than one cer- 
tificate of purchase at the same sale, and for the same year's 
tax or special assessment, the clerk shall on the request of the 
holder of such certificates, include as many tracts or lots 
described therein in the deed of conveyance as such person 
may desire, and for which deed the county clerk shall have a 
fee of fifty cents for each certificate embraced therein : Pro- 
vided, that no greater fee than three dollars shall be charged 
upon any one deed. 

Sec. 221. The deed so made by the county clerk under the 
official seal of his office shall be recorded in the same manner 
as other conveyances of real estate, and shall best in the 
grantee, his heirs and assigns, the title of the property therein 
described without further acknowledgment or evidence of such 
conveyance, and said conveyance shall be substantially in the 
following form : 



Several 
certificates 
maybe 
included in 
one deed. 



Deed shall be 
recorded. 



Form of deed. 



State of Illinois, 1 

County, j 

AVhereas at a public sale of real estate for the non-payment of 

taxes made in the county aforesaid on the day of A. D. 

18 — , the following described real estate was sold, to wit: [here place 
description of the real estate conveyed] ; and whereas, the same not 
having been redeemed from said sale, and it appearing that the 
nolder of the certificate of purchase of said real estate has complied 
with the laws of the State of Illinois necessary to entitle [insert 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 171 

him, her or them] to a deed of said real estate. Now, therefore, 

know ye, that I, , county clerk ot said county of , in 

consideration of the premises and by virtue of the statutes of the 
State of Illinois in such case provided, do hereby grant and convey 

unto , his heirs and assigns forever, the said real estate 

hereinbefore described, subject, however, to any redemption pro- 
vided by law. 

Given under my hand and the seal of our court this day 

of , A.D. IS . 

, County Clerk. 

Sec. 222. County clerks shall record the evidence upon Evidence must 
which deeds are issued, and be entitled to the same fee there- be recorded< 
for that may be allowed by law for recording deeds. 

Sec. 223. The foregoing six sections shall apply to all To what sales 
sales of real estate for taxes heretofore made, as well as to secfionsrefer. 
such sales for taxes and special assessments hereafter to be 
made. 

Sec. 224. Deeds executed by the county clerk as aforesaid, Deeds executed 
shall be prima facie evidence in all controversies and suits in ^ma/Si? erk 
relation to the right of the purchaser, his heirs or assigns, to evidence. 
the real estate thereby conveyed, of the following facts: 1st. 
That the real estate conveyed was subject to taxation at the 
time the same was assessed, and had been listed and assessed 
in the time and manner required by law. 2d. That the taxes 
or special assessments were not paid at any time before the 
sale. 3d. That the real estate conveyed had not been 
redeemed from the sale at the date of the deed. 4th. That 
the real estate was advertised for sale in the . manner and for 
the length of time required by law. 5th. That the real estate 
was sold for taxes or special assessments, as stated in the deed. 
6th. That the grantee in the deed was the purchaser or 
assignee of the purchaser. 7th. That the sale was conducted 
in the manner required by law. 

Sec. 225. Unless the holder of the certificate for real certificate for 
estate purchased at any tax sale under this act, takes out the ^f^ ^niVss 16 
deed as entitled by law, and files the same for record within holder takes 
one year from and after the time for redemption expires, the deed within 
said certificate or deed, and the sale on which it is based, one year * 
shall, from and after the expiration of <such one year, be abso- 
lutely null. If the holder of such certificate shall be prevented 
from obtaining such deed ,by injunction or order of any court, injunction. 
or by the refusal of the clerk to execute'' the same, the time he 
is so prevented shall be excluded from the computation of such 
time. Certificates of purchase and deeds executed by the 
county clerk shall recite the qualifications required in this SSJates and 
section. deeds.. 



172 



REVENUE. 



[DIV. IV 



FORFEITED PROPERTY. 



Forfeited 
property. 



Record book. 



Redemption 
and purchase 
of forfeited 
land 



Sec. 226. Each county clerk shall procure, at the expense 
of the county, a suitable record book, in which they shall 
keep a record of the real property forfeited to the State under 
the provisions of this act. Such book shall be properly ruled 
and headed, and proper columns provided for the several taxes 
and charges, redemptions and sales thereof. 

Sec. 227. If any person shall desire to redeem or pur- 
chase any tract of land or lot forfeited to the State, he shall 
apply to the county clerk, who shall issue his order to the 
county collector, directing him to receive from such person 
the amount due on said tract or lot, which shall in no case be 
less than ten per cent, in addition to the tax, special assess- 
ments, interest and printer's fees due thereon, particularly 
describing the property and setting forth the amount due ; and 
upon presentation of said order to the county collector, he 
shall receive said amount and give the person duplicate 
receipts therefor, setting forth a description of the property 
and the amount received; one of which shall be countersigned 
by the county clerk, and when so countersigned shall be evi- 
dence of the redemption or sale of the property therein 
described, as the case may be; but no such receipt shall bo 
valid until it is countersigned by the county clerk. The other 
receipt shall be filed by the county clerk in his office, and 
said clerk shall make a proper entry of the redemption or sale 
of the property on the books in his office, and charge the 
amount of the redemption or sale money to the county col- 
lector. In cases of sales, the collector and clerk shall make 
the receipt in the form of a certificate of purchase. Property 
purchased under this section shall be subject to redemption, 
notice, etc., the same as if sold at regular public tax sale. 

Sec. 228. It shall be the duty of the county clerk, 
annually, when he makes return of the amount of taxes levied, 
to report to the auditor the amount due the State on account 
of the redemption and sales of such forfeited property, and 
said auditor shall charge the same to the collector.- If the 
collector who received said redemption or sale money shall be 
succeeded in office, he shall pay the amount in his hands over 
to his successor, who shall pay said amount into the State treas- 
ury when he settles for the taxes of the current year. 
Amount due Sec. 229. The amount due on lands and lots previously 
SnSovAst forfeited to the State, and remaining unpaid on the first day of 
addedtotaxof]sj" Yember, shall be added to the tax of the current year, and 
the amount thereof shall be reported against the county col- 



Duplicate 
receipts. 



Countersigned 
by county 
clerk. 

Filing. 

Entry of 
redemption or 
sale. 



Receipt. 



County clerk 
report to 
auditor. 



Collector pay 
over to his 
successor. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 173 

lector with the amount, of the taxes for said year; and the 
amount so charged shall be placed on the tax books, collected 
and paid over in like manner as other taxes. The county county 

* . . . _ . . , J collector to sell 

collector is hereby authorized to advertise and sell said prop- forfeited 
erty in the manner hereinbefore required by this act, as if propery - 
said property had never been forfeited to the State. Said ^icomi SSed 
additions and sales shall be continued from year to year until from y ear lo 
the taxes on said property are paid, by sale or otherwise. 

Sec. 230. The county board may at any time institute suit suits, 
in an action of debt, in the name of the People of the State 
of Illinois, in any court of competent jurisdiction, for the 
amount due on forfeited property. 

FINAL SETTLEMENT OF COUNTY COLLECTOR. 

Sec. 231. On or before the third Monday in June, annu- Final settie- 
ally, the county collector shall make out and file with the Elector? ° unty 
county clerk a statement in writing, setting forth, in detail, statement. 
the name of each person charged with personal property tax 
which he has been unable to collect, by reason of the removal 
or insolvency of the person charged with such tax, the value 
of the property, and the amount of tax, the cause of inability 
to collect such tax, in each separate case, in a column pro- 
vided in the list for that purpose. Said collector shall, at the 
same time, make out and file with the county clerk a similar 
detailed list of errors in assessment of real estate, and errors LlstofeiTOrs - 
in footing of tax books, giving in each case a description of 
the property, the valuation and amount of several taxes and 
special assessments, and cause of error. The truth of the 
statements contained in such lists shall be verified by affidavit davit. edbyam " 
of the county collector. County collectors, in cases of 
removals and insolvencies, may give, as the cause of inability Removals and 
to collect, the same cause as sworn to by the town or district col- in! ! 
lectors, stating in their return the fact that such was the state- 
ment made by the town or district collector, and that such tax 
still remains uncollected. 

Sec. 232. If any lands or lots shall be forfeited to the credit to coi- 
State for taxes or special assessments, the collector shall be Jjj forfeited* 
entitled to a credit in his final settlement, for the amount of lands - 
the several taxes and special assessments thereon — the county 
to allow the amount of printers' fees thereon, and be entitled 
to said fees so allowed, when collected. 

Sec. 233. On the third Monday in June annually, the Annual settle- 
county board shall settle with and allow the county collector Jountycoi- 
credit for such allowance as he may be legally entitled to. lector - 



174 REVENUE. [DIV. IV. 

When county Sec. 234. If there be no session of the county board held 

seSon^ lists at tne P ro P er ti me f° r settling and adjusting the accounts of 

to be fried with the county collector, it shall be the duty of the collector to 

file the lists with the county clerk, who shall examine said 

lists and correct the same, if necessary, in like manner as said 

board is required to do. Said county clerk shall make an 

t tax accurate computation of the value of the property and the 

amount of the delinquent tax and special assessments 

returned, for which the collector is entitled to credit. 

county clerk Sec. 235. The county clerk shall immediately, in either 

certify to audi- C ase, certify to the auditor of public accounts the valuation of 

property, and the amount of State taxes due thereon, for 

which the collector may be allowed credit. 

County clerk Sec. 236. The county clerk shall also, at the same time, 

certify to other ce rtify to the several authorities or persons with whom the 

authorities. J ._ . , , - r , . . . . 

county collector is to make settlement, showing the valuation 
of property and amount of taxes and special assessments due 
thereon allowable to said collector in the settlement of their 
several accounts. 
Final settle- Sec. 237. The auditor and other proper autnorities or per- 
S e conectOT? i,: sons sna U> * n tne ^ r ^ na l settlements with the collector, allow 
Proviso. him credit for the amount so certified : Provided, that if the 

auditor or such other proper authorities or persons shall have 
reason to believe that the amount stated in said certificate is 
not correct, or that the allowance was illegally made, he or 
they shall return the same for correction ; and when the same 
shall appear to be necessary, in the opinion of the auditor or 
Examination sucn otner proper authorities or persons, he or they shall des- 
of collector's jgnate and appoint some competent person to examine the col- 
lector's books and settlement, and the person so designated 
and appointed shall have access to the collector's books and 
papers, appertaining to such collector's office or settlement, for 
the purpose of making such examination, 
county board Sec. 238. In all cases when the adjustment is made with 
mentmade" 16 " the county clerk, the county board, shall, at the first session 
cierk C ° unty thereafter, examine such settlement, and if found correct shall 
enter an order to that effect ; but if any omission or error is 
found, said board shall cause the same to be corrected, and 
a correct statement of the facts in the case forwarded to the 
auditor and other proper authorities or persons, who shall cor- 
rect and adjust the collector's accounts accordingly. 



IUV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 175 

PARTIAL SETTLEMENT OP COUNTY COLLECTORS. 

Sec. 230. On or before the tenth day of April, annually, rartiai settle- 
after he has made settlement with town or district collectors, conectors° uuty 
the county collector shall make a sworn statement, show the Sworn state- 
total amounts of each kind of tax received by him from town 
or district collectors, and the total amount of each collected 
by himself — which statement shall be filed in the office of the 
county clerk. 

Sec. 240. The clerk shall immediately, on the receipt of cierk certify 
such statement, certify to the auditor and to other proper Sife^authori? 
authorities or persons, the amount for which the collector is ties - 
required to settle with them, severally. 

Sec. 241. The county collector shall, on or before the when collector 
fifteenth day of April following, pay over to the State treasurer ^Jes to the Ver 
the taxes in his hands, payable to the State treasury, as shown State treasurer, 
by the statement required by section two hundred and thirty- 
nine of this act. 

Sec. 242. The failure of any county collector to obtain judg- coiiector'to 
ment shall not prevent him from presenting his statement of f^^ent. 
credits, and making settlement for taxes and special assess- 
ments in his hands, at the time required by this act ; but if, 
from no fault of the collector, he fail to obtain judgment and 
sale of delinquent real estate at the time required by this act, 
he shall be allowed, in his settlements, a temporary credit for 
the amount of taxes and special assessments in such delinquent 
list, which delinquent taxes and special assessments shall be 
accounted for and paid immediately after sale is had. 

Sec. 243. He shall, within the same time, pay over to the shall pay to 
other proper authorities or persons, the amounts so shown to be authorities. 
in his hands, and payable to them. 

Sec. 244. The county collector shall report and pay over shall report 
the amount of tax and special assessments, due to towns, dis- Sxefdue ver 
tricts, cities, villages, corporations and persons, collected by towns,etc * 
him on delinquent property, at least once in every ten days, 
when demanded by the proper authorities or persons. 

Sec. 245. Any county collector failing to make the reports Failure to ma e 
and payments hereinbefore required, for five days after the plymente. 
time specified for that purpose, or after demand made as afore- 
said, the auditor or such other authorities or persons, may 
bring suit upon the collector's bond. 

Sec. 246. If any county collector fails to account and pay 
over, as required in the preceding sections, his office may be 
declared vacant by the county board, or by any court in which 
suit is brought on his official bond. 



176 



REVENUE. 



[div. IV. 



FINAL SETTLEMENT OF THE COUNTY COLLECTOR FOR STATE 

TAXES. 



Final 

settlement for 
State taxes. 



Proviso. 



Furtherproviso 



County clerk 
furnisli 
statement to 
auditor. 



Statement 
objected to by 
auditor. 



Over payment 
by collector 



Settlement 
between 
collectors and 
auditors. 



Sec. 247. The county clerk shall make out and deliver to 
the county collector, as soon as adjustment is made with the 
county board or county clerk, annually, the statements, certifi- 
cates and lists appertaining to the settlement of the accounts 
of such collector ; which statement, certificates and lists shall 
be made out in proper form, under his seal of office, on blanks 
■which it is hereby made [the] duty of the auditor to furnish, 
annually, for that purpose. The collector shall deliver the 
same at the office of the auditor, and make a final settlement 
of his accounts, and pay the amount due the State into the State 
treasury on or before the first day of July next after receiving 
the tax books : Provided, that in all cases where the statements, 
certificates and lists appertaining to the final settlement of a 
collector are on file with the auditor, on or before the first day 
of July, the auditor shall not charge interest on the balance 
found due on the account of such collector, for fifteen days after 
mailing said auditor's statement, showing; balance due the State 
on such collector's account : Provided, further, that this section 
shall not be held to relieve any collector from the payment of 
interest charged on his account by reason of failure to make 
payment to the State, at other time or times, as required by 
this or any other act of the General Assembly of this State. 

Sec. 248. The county clerk shall furnish a duplicate copy 
of said statement, duly certified, whenever requested so to do 
by the auditor. If the statement of credits herein required, 
or any of the items therein, are objected to by the auditor, he 
shall return the statement to the county clerk, stating his 
objections, and said clerk shall examine and corrector explain 
the same satisfactorily, and return the statement to said 
auditor. 

Sec. 249. If any collector shall have paid, or may hereafter 
pay, into the State treasury, any greater sum or sums of money 
than are or may be legally and justly due from such collector, 
after deducting abatements and commissions, the auditor shall 
issue his warrant for the amount so overpaid, which shall be 
paid out of the fund or funds so overpaid on said warrant. 

Sec. 250. Upon ascertaining the amount due to the State 
from any collector or other person, the auditor shall give such 
person a statement of the amount to be paid, and upon the 
presentation of such statement to the State treasurer, and the 
payment of the sum stated to be due, the treasurer shall give 
duplicate receipts therefor, one of which shall be filed in the 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 177 

auditor's office, and entered in a book to be kept for that pur- 
pose, and the other shall be countersigned by the auditor and 
delivered to the person making the payment; and no payment 
shall be considered as having been made until the treasurer's 
receipt shall be countersigned by the auditor as aforesaid. 

Sec. 251. Any collector failing to pay into the State treas- collector 
urv the amount due to the State, on his account for State and f^ suSe 1 ** 
other taxes, at the time or times required by this act, shall treasury, 
pay interest at the rate of ten per cent, per annum from the 
time the same became due under this act until the same is 
paid ; and it shall be the duty of the auditor to charge such 
interest to the account of every collector failing to pay at the 
time or times required by this act. In no case shall the 
auditor be permitted to remit such interest unless satisfactory 
evidence from the county board is presented to him, showing, 
by official action taken by such board, lawful cause why the 
collector could not pay over, in part or in whole, the amount 
due on such collector's account with the State. 

Sec. 252. Upon the final settlement of any account with Duplicate 
the State, the auditor shall give the collector duplicate certifi- gfJeS c <m e fiiiai 
cates, under his seal of office, setting forth that said collector settlement. 
has settled and paid into the State treasury the full amount 
due from him on said account; and it shall be the duty of the 
collector to file one of said certificates in the office of the filed with 
county clerk, on or before the first day of August next after county clerk. 
receiving the tax books. If any collector shall neglect or 
refuse to file one of said certificates as above required, the 
county clerk shall leave a written notice at the office of said 
collector, requiring him to appear before the county court, at 
the September term thereof, and show cause why he has not 
filed the certificate aforesaid; and if the collector shall not 
show that he has paid over the full amount due from him, and 
made a final settlement with the State and county, or that he 
has a lawful excuse for failing to do so, his office as collector 
and treasurer shall be declared vacant by said court, and the Y acant deClare 
same filed as in other cases of vacancy by reason of death or 
otherwise. 

LIENS OF TAXES. 

Sec. 253. The taxes assessed upon real property shall be a Lien on real 
lien thereon from and including the first day of May, in the P r °P ert y- 
year in which they are levied, until the same are paid.(l) 

(1) Tl.e payment of taxes by any person extinguishes them, and if a volun- 
tary attempt is made to pay them a second time, the last will be considesed a 
gratuity to the taxing power. Morrison v. Kelly, 21 111. It., G2G. 



178 



REVENUE. 



[DIY. IV. 



Sec. 254. The taxes assessed upon personal property shall 
be a lien upon the personal property of the person assessed, 
from and after the time the tax books are received by the 
collector. 

Sec. 255. Personal property shall be liable for taxes 
operty liable levied on real property, and real property shall be liable for 



On personal. 



Personal 

pr _ 

lor tax on real. 



liable for tax 
on personal 



Proviso. 



Lien of agent 
for tax. 



taxes levied on personal property, but the tax on personal 
Real property property shall not be charged against real property, except in 
cases of removals, or where said tax cannot be made out of 
the personal property; but the tax on real property may 
be made out of personal property at any time after the 
tax becomes due, by any collector having the tax books 
in hi-s hands, by distraint and sale, in the manner provi- 
ded in this act: Provided, That judgment against real 
property for non-payment of taxes thereon, shall not be 
prevented by showing that the owner thereof was pos- 
sessed of personal property subject to distraint; and no person 
shall be subject to have his personal property distrained and 
sold for tax on real estate, which may have been listed and 
assessed in his name, when he makes oath, or otherwise satis- 
fies the collector that he did not own such real property on the 
preceding first day of May. 

Sec. 256. When property is assessed to any person as 
agent for another, or in a representative capacity, such person 
shall have a lien upon such property, or any property of his 
principal in his possession, until he is indemnified against the 
payment thereof, or if he has paid the tax, until he is reim- 
bursed for such payment. 

TJte taxfs of any year may be paid at any time before sale. Cofield r. Farry, 
19 111. R., 1S3. 

The word "paid," on a collector's book, opposite a tract of land, is not evi- 
dence tbat the taxes were paid by the person in whose name the land is listed. 
Irwin v. Miller. 23 111. R, 401. 

A tax receipt, which simply shows that "dollars" were received, and fails to 
state that, whatever amount was received, was in full of the taxes assessed, and 
there is no character opposite the figures to indicate what they are designed to repre- 
sent, is fatally defective. But in using the receipt under the seven years' limitation 
act, where it simply means the year for which the taxes were paid, without giving 
the day or month when it was given, it is sufficient as showing the payment of the 
taxes assessed for that year. Cook v. Norton et al., 43 111. R. 

A tax receipt which erroneously states the number of acres in a tract of land, but 
describes a legal sub-division, is good ; the statement of the quantity is immaterial. 
Morrison et al.v. Norman et al., 47 111. R.. 478. 

The receipt describing the premises upon which the taxes were paid, by No. 5 
placed in a column headed "lot," and 9 in the next column headed "block," then 
followed the figure 8 in the column headed "lot," but with no number opposite 
thereto in the column headed " block." Held, that this description was sufficient to 
justify the inference, nothing appearing to the contrary, that lot was in the same 
block as lot 5. Daniels v. Barso, 40 111. R, 307. 

An affidavit of loss of receipts might authorize proof of their contents, but 
not the introduction of the collector's book to prove the word "paid" entered on 
them, the contents ot such receipts. Irwin v. Miller, 23 111. R., 401. 

Where taxes have been paid upon property legally liable to taxation, they cannot 
be recovered back, although the assessment was informal and irregular, and not 
strictly in conformity with the statute, or the statute itself defective in respect to the 
manner in which the assessment is directed to be made. Board of Supervisors of 
Stephenson Co. v. Manny, 56 111., 160. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 179 



WHO NOT ELIGIBLE AS BONDSMAN. 

Sec. 257. No judge of the county court, chairman of^«ons.m>t 
the county board, clerk of the circuit court, county clerk, bondsmen, 
sheriff, deputy sheriff or coroner, shall be permitted to be 
a surety on the bond of a county, town, district or deputy 
collector or county treasurer. 

LIABILITY ON BONDS. 

Sec. 258. The bond of every county, town or district col- Bond of col- 
lector shall be held to be security for the payment by such seciSty? ld aS 
collector to the State treasurer, county treasurer, and the sev- 
eral cities, towns and villages, and proper authorities and per- 
sons, respectively, of all taxes and special assessments which 
may be collected or received by him on their behalf, by virtue 
of any law in force at the time of giving such bond, or that 
may be passed or take effect thereafter. 

Sec. 259. Upon the failure of any collector to make settle- Duty of auditor 
ment with the auditor or to pay money into the State treas- cSfector to°set- 
ury, as required by law, it shall be the duty of the auditor to tle * 
sue the collector and his securities upon the bond of such col- 
lector, and take such proceedings thereon as shall be neces- 
sary to protect the interests of the State. 

Sec. 260. When suit is prosecuted by the auditor, it may where suit 
be instituted in either division of the supreme court, or i n ma y bebrou s nt 
Sangamon county circuit court, or in any court of record in 
this State, having jurisdiction of the amount. 

Sec. 261. When suit has been instituted by the auditor, 
any party aggrieved may proceed under judgment obtained, 
by writ of inquiry of damages, as in other cases on bonds. 

Sec. 262. Cities, towns, villages, or corporate authorities cities and 
or persons, aggrieved, may prosecute suit on the bond of any to r wns S a ^ U it 
collector, for their use, in any court having competent juris- 
diction, whether the bond has been put in suit of judgment 
obtained thereon, by the auditor, or not ; and in case of judg- 
ment thereon the auditor may, if he shall so elect, have a 
writ of inquiry of damages, for any amount that may be due 
to the State treasury from such collector. 

Sec. 263. The State shall pay like fees as are or may be Fees, how to 
allowed by law in suits between individuals ; and in all cases be paid - 
when the State is plaintiff, it shall advance and pay such fees 
in like manner as individuals are required to advance and pay 
fees : and when the State becomes the purchaser of real prop- 
erty sold on execution, for any debt due the State, the officer 



180 



REVENUE. 



[div. IV. 



selling such real estate shall be entitled to like commissions as 
he would have been entitled to had such property been pur- 
chased by an individual — said fees and commissions to be paid 
on the warrant of the auditor, out of any money in the treas- 
ury appropriated for that purpose ; and when such fees are 
collected they shall be paid into the State treasury. 

SALE OF REAL ESTATE ON EXECUTION IN BEHALF OF THE 
STATE REDEMPTION. 



Sale of realty 
by State. 



Duty of oScer 
making levy. 



Two-thirds of 
its value. 



Redemption. 



Moneys 
received on 
execution in 
behalf of the 
State. 



Sec. 264. "When real estate shall be levied upon to satisfy- 
any judgment in favor of the State, it shall be the duty of 
the officer making such levy to transmit, by mail, to the audi- 
tor, at least twenty days before the day of sale, a correct 
statement, showing the description and value of said property, 
in cash ; the truth of said statement shall be attested by the 
oath of said officer. Said officer shall, at the same time, fur- 
nish the auditor with an abstract of title of the property lev- 
ied upon, the expense thereof to be charged and collected as 
costs. And the auditor is hereby authorized and required to 
purchase, in his name, for the use of the People of the State 
of Illinois, at a price not exceeding two -thirds of said value, 
so much of said property as may be required to pay the 
amount of the judgments and costs aforesaid ; and it shall be 
the duty of the officer making such sale to forward to the 
auditor a certificate of purchase, and make his return, as 
required in other cases of sales on execution. Any person 
desiring to redeem all or part of said property from such sale, 
shall pay the amount of redemption money into the State 
treasury, and thereupon the auditor shall indorse such pay- 
ment on the back of the certificate of purchase aforesaid, and 
deliver it to the person so paying, which shall have the same 
effect as redemptions have in other cases ; bnt no real estate 
purchased as aforesaid shall be considered redeemed from such 
sale until the redemption money is paid into the State treas- 
ury. Such certificate may be recorded in the recorder's office 
of the county in which such real property is situated, and 
shall operate as a release of record of such property. 

Sec. 265.: All moneys received by any sheriff or other 
officer, on execution, in behalf of the State, shall be paid by 
such officer to the State treasurer, or to the collector of his 
county, as may be directed by the auditor, within twenty 
days after demand is made by said auditor. Said demand 
may be made by any person authorized by the auditor. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 181 

Sec. 2GG. If any real estate, purchased by the State on unredeemed 
execution, shall not be redeemed within the time required by SteVeS t0 
law, it shall be the duty of the auditor to obtain a deed or 
deeds therefor ; which he shall cause to be recorded in a book 
kept for that purpose in his office, and shall take such steps 
as he shall deem necessary to protect the timber or fixtures 
thereon from being lost or destroyed. 

DOUBLE PAYMENT AND ASSESSMENT — KEFUNDING. 

Sec. 267. Whenever the taxes on the same property shall payment of 
have been paid more than once, for the same year, by differ- ^claimants 1 ' 
ent claimants, the county collector shall make a return to the 
county clerk of all such surplus taxes so received by him, 
together with the names of the several claimants thus paying. 
Certified copies of said return, or of record thereof, by the 
county clerk, or of the county clerk's report, by the auditor, 
shall be prima facie evidence in all courts, when the same 
shall come in question, of the payment of tax on the property 
therein described for the year or years therein mentioned. 
The county clerk shall make a full record of all such cases, 
and transmit a certified copy thereof to the auditor, who shall 
charge such collector with the portion of such surplus taxes 
belonging to the State. The town or district collectors shall 
report such cases to the county collector, and he to the 
county clerk. 

Sec. 268. If any real property shall be twice assessed forDoubje 
the same year, or assessed before it becomes taxable, and the assessments - 
taxes so erroneously assessed shall have been paid, either at 
sale or otherwise, or having been paid twice by different claim- erroneously 
ants, the county board, on application of the person paying the sold ' 
same, or his agent, and being satisfied of the facts in the case, 
shall cause the State and county taxes to be refunded pro rata r e fS OT sha!1 
by the State and county; and the city and incorporated town 
or village taxes and special assessments, by the city or incor- 
porated town, village or other proper authorities or persons. 
If any countys, town or district collector shall receive the taxes 
or special assessments properly due on any real property, and 
the same shall afterwards be sold»for said taxes or special assess- 
ments, he shall refund to the purchaser thereof if applica- 
tion be made within three years from the date of said sale, Limitatl0n - 
double the amount of purchase money and all expenses of 
advertising said real estate under this act, requiring real estate 
purchased at tax sales to be advertised, including cost of deeds. 
Any collector neglecting or refusing to pay as required by 



182 REVENUE. [DIV. IT. 

this section, shall be liable to the county, or person in interest, 
in an action of debt in any court having jurisdiction. (1) 

WHEN RECORDS ARE DESTROYED. 



Destruction of 



Sec. 269. When assessment rolls or collector's books, in 
assessment" ~* whole or in part, of any county, town, city, incorporated vil- 
lector's books, lage or district, shall be lost or destroyed by any means what- 
ever, a new assessment, or new books, as the case may require, 
shall be made under the direction of the county board. Said 
board shall, in such cases, fix reasonable times and dates for per- 
forming the work of assessment, equalization, levy, extension 
and collection of taxes, and paying over the same, or making 
new books, as the circumstances of the case may require. All 
the provisions of this act shall apply to the dates fixed by the 
county board, in the same manner that they apply to the dates 
for similar purposes, as fixed by this a«t. The county board 
is hereby fully empowered to select and appoint persons, where 
it may find the same necessary, to carry into effect the provi- 
sions of this section. 

OTHER DUTIES OF AUDITOR. 

Property Sec. 270. Whenever it shall come to the knowledge of the 

taxation. from auditor that any county, township, city, district or town, or 
any well-defined locality thereof, or any particular class of pro- 
perty therein, has heretofore been or may hereafter be released, 
from any cause whatever, from its just proportion of State 
them£ audit ° r taxes > sa id auditor shall cause suit to be commenced in an action 
of debt, in the name of the People of the State of Illinois, 
either against the municipality or against the property unjustly 
released from taxation, or the owners thereof, for the amount 
of such tax, in the supreme court of this State, in either divi- 
sion thereof; and when judgment may be recovered in any 
such case, the auditor shall levy a rate of tax on the equalized 
valuation of all property or particular class of property in such 

(1) Tlie evidence on which the State tax is refunded is the certificate of the 
county clerk, showing the action of the board of supervisors. The certificate should 
describe the property and show the years tax sold for or paid, or both, the amount 
of State and county tax separate, and the cause of error. Opinion Auditor 
Lippixcott, December 28, 1869. 

After a deed has been given, erroneous sales can only be canceled by the voluntary 
return of the deed. Opinion Auditor Lippixcott, August 20, 1869. 

In no case can the State be compelled to refund a tax voluntarily paid, upon a 
claim of technical illegality in the assessment, provided the property on which it 
was paid was legally taxable. People ex rel. v. Miner, 46 111. R., 374. 

There is no law requiring the county or State tax to be refunded on -personal pro- 
perty, however erroneously taxed. Opinion Auditor Mixer, October 11. 18C7 ; 
January 17, 1868; Septemper 14, 1867. Opinion Auditor Lippixcott, July 26, 1S69. 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 183 

county, township, city, district, town or locality, as the case 
may be, as will pay the State the amount of such judgment 
and costs ; and it shall be the duty of the county clerk of the 
proper county to extend such rate of tax with the State tax 
of the year directed in the auditor's certificate. Any county re°fusing C to r 
clerk neglecting or refusing to extend such rate, as certified to removaiamT 
him by the auditor, shall be removed from his office, and in finefor - 
addition thereto shall be subject to a fine of five thousand dol- 
lars, and damages caused by such neglect or refusal, to be 
sued for by the auditor, in an action of debt, in the name of the 
People of the State of Illinois, in either division of the supreme 
court of this State: Provided, that incases where the auditor Proviso, 
and proper local authorities of the proper municipality can 
arrange to make such levy to reimburse the State in such 
cases, without suit, the auditor is hereby authorized to pursue 
such course. 

Sec. 271. The auditor is authorized to sell, transfer and Auditor 
convey, by deed, any and all real estate that may have been Jeifreai^tate. 
heretofore, or may be hereafter, purchased or take in payment, to 
satisfy any judgment or any execution in favor of the State, 
by this State or by any officer of this State, for the benefit and 
use of the State, to any person or persons who may pay into 
the State treasury the full amount paid by the State for said 
property, including costs, and six per cent, interest thereon, 
from ±he date of said sale to the time of such payment : Pro- p r0Y i S0 . 
vided, that the sale of the real estate, in part or in whole, may 
be made at such price, not less than the price paid for such 
part or the whole of the property, as the case may be, as the 
judge of the county court, chairman of the county board, and 
the sheriff of the county in which the estate is situated, shall 
certify the same to be worth ; or, if not sold in one year from 
and after the expiration of the time of redemption now or here- 
after allowed by law, said property may, if the auditor thinks 
the valuation fair, be sold by said auditor upon and for any 
valuation of said property which may be apprised and certified 
by the judge of the county court, chairman of the county board county judge. 
and sheriff of the county in which such property is situated. 

Sec. 272. On the first day of May in each year, or as Au ditor obtain 
soon thereafter as practicable, the auditor shall obtain from abstracts, 
the United States land office in this State abstracts of the 
lands entered and located, and not previously obtained, and 
shall, at the same time, obtain from the Illinois Central rail- 
road and canal offices abstracts of the Central railroad and 
canal lands sold. Upon the receipt of said abstracts, the 
auditor shall cause them to be transcribed into the tract books 



184 



REVENUE. [DIV. IV. 



in his office, and shall, without delay, cause abstracts of the 
lands in each county, including school lands reported to his 
office as having been sold, to be made out and forwarded by 
mail to the county clerks of the several counties ; and said 
clerks shall cause such abstracts to be transcribed into the 
Expenses of tract book, and filed in their office. The expense of procur- 
ing and furnishing the abstracts required by this section, shall 
be paid by the auditor out of the appropriation for the expen- 
ses of his office. 
Auditor shall Sec. 273. It shall be the duty of the auditor to make out 
cierkVith 1111 and forward to each county clerk, from time to time, for the 
forms. llse f guc } 1 c i er k s an( j ther officers, suitable forms and 

instructions; and all such instructions shall be strictly com- 
plied with by the officers in the performance of their respec- 
opSiiouMid 8 ti ve duties. lie shall give his opinion and advice on all ques- 
advice. tions of doubt as to the true intent and meaning of the 

provisions of this act.(l) 
. . Sec. 274. The auditor shall, as soon as practicable after 

dStribSion of the passage of this act, cause the same to be correctly printed 
this act. in pamphlet form, and transmit to each county clerk a suffi- 

cient number of copies thereof for the use of the several 
county, town and district officers ; and said clerk shall deliver 
the same to the proper officers. . 
, , Sec. 275. The county clerks of the several counties shall, 

Countv clerk ** 

shall report list annually, report to the auditor a list of the swamp and over- 
>wamp n s. fj owe( j j an( j g^ j n their respective counties for the year 

ending on the first day of May, and the auditor shall enter 

the same in the tract books of his office. 

OMITTED PROPERTY SAVING CLAUSES. 

Omitted ^ EC * ^~^' If any real or personal property shall be omitted 

property. in the assessment of any year or number of years, or the tax 
thereon, for which such property was liable, from any cause 
has not been paid, or if any such property, by reason of defec- 
tive description or assessment thereof, shall fail to pay taxes 
for any year or years, in either case the same, when discov- 
ered, shall be listed and assessed by the assessor and placed 
Arrearages. on * ne assessment and tax books. The arrearages of tax 

(1) The opinions given by an officer whose duty it is by law to give such opinion, 
in regard to the intent or meaning of a law, as a general rule, will be regarded 
favorably by the courts, and upheld unless clearly erroneous. 

The forms and instructions of the auditor, made out in conformity to law, mu?t 
be used by the revenue officers. But, if the auditor direct statistical, financial or 
other items of information not required by law, the auditor cannot enforce the per- 
formance of such burden by rejecting the return, duly made out in conformity 
to law. Stark Co. Bank v. McGregor, 6 Ohio State B.., 45. 



PIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 185 

which might have been assessed, with ten per cent, interest 
thereon, from the time the same ought to have been paid, 
shall be charged against such property by the county clerk. 
It .shall be the duty of county clerks to add uncollected per- 
sonal property tax to the tax of any subsequent year, when- 
ever they may find the person owing such uncollected tax 
assessed for any subsequent year. 

Sec. 277. If the tax or assessment on property liable to^aw«i873, 
taxation is prevented from being collected for any year or ps. 204. 

years, by reason of any erroneous proceeding or other cause, ' v ' 

the amount of such tax or assessment which such property proceedings, 
should have paid, may be added to the tax on such property 
for any subsequent year, in separate columns, designating the 
year or years. 

Sec. 278. No such charge for tax and interest for previous No cnarges 
years, as provided for in the preceding section, shall be madeP^j or toowner- 
against any property prior to the date of ownership of the 
person owning such property at the time the liability for such 
omitted tax was first ascertained : Provided, that the owner 
of property, if known, assessed under this and the preceding 
section, shall be notified by the assessor or clerk, as the case 
may require. 

Sec. 279. When any special assessment is not returned to Returns of 
the county collector on or before the first day of March nextSISaJwhen" 
after At is due, the same may be returned on or before the first barred, 
day of March in the succeeding year ; and, if not t then 
returned, it shall be considered barred, unless return is pre- 
vented by an injunction or order of court ; and the time such 
return is thus prevented shall be excluded from the computa- 
tion of such time. 

Sec. 280. A failure to complete an assessment in the time Failure to com- 
required by this act shall not vitiate such assessment, but the me n e t assess " 
same shall be as legal and valid as if completed in the time 
required by law. 

Sec. 281. No assessment of real or personal property, or in formality not 
charge for taxes thereon, shall be considered illegal on account vatiate - 
of any informality in making the assessment, or in the tax 
lists, or on account of the assessments not being made or com- 
pleted within the time required by law. 

Sec. 282. Any failure to deliver the collector's books within Failure to de- 
the time required by this act, shall in no way affect the valid- books not Ct ° rs 
ity of the assessment and levy of taxes, but in all cases of vitiate - 
such failure, the assessment and levy of taxes shall be held to 
be as valid and binding as if said books had been delivered at 
or within the time required by law. 



186 



REVENUE. 



[DIV. IV. 



charged to. Sec. 283. ~No sale of real estate for taxes shall be consid- 

noTvfuat™ 6 ered invalid on account of the same having been charged in 
any other name than that of the rightful owner. 

WHO MAY ADMINISTER OATHS. 

who may ad- Sec. 284. Any oath authorized to be administered under 
minister oaths, this act, may be administered by an assessor or deputy 
assessor, or by any other officer having authority to admin- 
ister oaths. 

PENALTIES OF OFFICERS. 



by county- 
clerk and col 
lector. 



Collector fail 
ing to obtain 
judgment. 



Sec. 285. If any county clerk shall deliver the tax books 
unlawful acts j n to the hands of the county collector, or if any collector 
shall receive said books or collect any taxes until such col- 
lector's bond has been approved and filed, as required by this 
act, said clerk and collector, and each of them, shall be liable 
to a penalty of not less than five hundred dollars, and all 
damages and costs, to be recovered in an action of debt ; and 
the auditor shall bring suit therefor, in the name of the 
People of the State of Illinois — the amount recovered on 
such fines to be paid into the State treasury as revenue fund. 
[Nothing in this section shall be construed as relieving the 
securities of a collector from liabilities incurred under a bond 
not approved and filed by the auditor. 

SeC. 286. If any collector shall, by his own neglect, fail to 
obtain judgment at the May term of the county court, or 
shall fail to present his list of delinquencies on personal prop- 
erty, or errors in assessment of real estate, at the time 
required by this act, he shall lose the benefit of any abate- 
ment to which he might have been entitled, and shall pay to 
the State and county the full amount charged against him, 
after deducting the fees allowed by this act for collecting and 
paying over taxes. If the county court is not held at the 
May term, the collector shall have further time to pay over 
the amount due on the delinquent list. 

Sec. 287. If any officer shall fail or neglect to perform 
ficer to perform any of the duties required of him by this act, upon being 
duties. required so to do by any person interested in the matter, he 

shall be liable to a fine of not less than ten dollars nor more 
than five hundred dollars, to be recovered in an action of debt 
in the circuit court of the proper county, and may be removed 
from office at the discretion of the court; and any officer 
who shall knowingly violate any of the provisions of this act, 



Failure of of- 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 187 

shall be liable to a fine of not less than ten dollars nor more Fine. 

than one thousand dollars, to be recovered in an action of 

debt in the name of the People of the State of Illinois, in 

any court having jurisdiction, and may be removed from office Removal from 

at the discretion of the court, and said fines, when recovered, 

shall be paid into the county treasury. 

Sec. 288. Every county clerk, assessor, collector, or other clerk, assessor, 
officer who shall in any case refuse or knowingly neglect to Sther Sneer 
perform any duty enjoined upon him by this act, or who shall fa Jrfo^ duties 
consent to or connive at any evasion of its provisions, whereby 
any proceeding required by this act shall be prevented or hin- 
dered, or whereby any property required to be listed for taxa- 
tion shall be unlawfully exempted, or the same be entered upon 
the tax list at less than its fair cash value, shall, for every such Penalty, 
offense, neglect or refusal, be liable, on the complaint of any 
person, for double the amount of the loss or damage caused 
thereby, to be recovered in an action of debt, in the name of 
the People of the State of Illinois, in any court having juris- 
diction, and may be removed from his office at the discretion 
of the court. 

COUNTY TO FURNISH BOOKS AND BLANKS. 

Sec. 289. The county board shall direct the county clerk county furnish 
to procure all necessary books and blanks required by this act blanks * 
to be used in the assessment of property and collection of 
taxes, at the expense of the county. 

COUNTY FUNDS — MANNER OF KEEPING ACCOUNTS THEREOF. 

Sec. 290. The county collector shall, on the first of every Accounts of 
month, report to the county clerk, in writing, the amount of collector— how 
county tax received by him during the preceding month, show- kept - 
ing what amount of said tax was received in money, and what 
amount in county orders and jury certificates. The county 
collector shall keep his account as collector of taxes separate 
from his account as county treasurer. He shall credit his 
account as collector with the amount of his monthly reports 
to the county clerk, and with the amount of insolvencies, 
removals, errors, forfeitures, and other credits allowed him on 
settlement with the county board; and as county treasurer he 
shall charge himself with the amount shown in his monthly 
report to the county clerk, as aforesaid, and such other 
amounts as may come into his hands as county treasurer; and 
he shall, as such treasurer, after the close of each month, can- 



188 



REVENUE. 



[DIV. IV. 



eel the county orders and jury certificates in his hands, and 
return the same with a descriptive list, giving numbers and 
amounts properly footed, to the county clerk, who shall care- 
fully compare and file the same in his office, subject to the 
order of the county board, and give the treasurer a receipt for 
the same ; which receipt shall be the evidence upon which the 
county treasurer shall take credit in his accounts as such treas- 
urer, with the county, subject to the approval of the county 
board. The county board shall examine such account and 



County board 
to examine 
accounts. 



Accounts of 
county clerk - 
how kept. 



Treasurer's 
account. 



vouchers, at such time or times, by committee or otherwise, 
as may be deemed requisite. 

Sec. 291. Each county clerk shall keep an account with 
the county collector, charging him with the amount of county 
tax placed in his hands for collection, and with the county tax 
received by him from sales and redemptions of forfeited prop- 
erty, and with any other funds belonging to the county, that 
shall come into the collector's hands; and shall credit him 
with the amounts ascertained as required in the preceding sec- 
tion, charged to the county treasurer's account, monthly; 
also, with amount of county tax on insolvencies, removals, 
errors, forfeited property, etc., whenever ascertained in the 
manner required by this act. The county clerks shall also 
keep a treasurer's account with the county treasurer of their 
respective counties. The treasurer shall be charged with the 
amount of money, county orders and jury certificates reported 
in the collector's monthly statements required to be made in 
the preceding section, and all amounts paid to the county 
treasurer from other sources than the county revenue tax; and 
it is hereby made the duty of all persons paying money into 
the county treasury for all purposes except the county taxes, 
to first obtain from the county clerk an order on the treasurer 
to receive the same, and the treasurer shall give the person so 
paying duplicate receipts therefor, one of which shall be 
countersigned by the county clerk, and retained by the person 
paying over the amount, and the other filed in the county 
clerk's office, and the amount thereof charged against the 
treasurer. The treasurer's account shall be credited, monthly, 
with the amount of county orders and jury certificates can- 
celled and filed in the county clerk's office, as required in the 
prceding section. 



definitions. 



Definitions. 



Sec. 292. The words and phrases following, whenever used 
in this act, shall be construed to include in their meaning the 



DIV. IV.] ASSESSMENT AND COLLECTION OF TAXES. 180 

definitions set opposite the same in this section, whenever it 
shall be necessary to the proper construction of this act : 

1st. Assessor — Assessors. — Town, district and deputy Assessors, 
assessors. 

2d. Auditor. — Auditor of public accounts. Auditor. 

3d. Bank — Banker — Broker — Stock- Jobber. — Who- Bank, bankers, 
ever has money employed in the business of dealing in coin, elc- 
notes, or bills of exchange, or in the business of dealing in or 
buying or selling any kind of bills of exchange, checks, drafts, 
bank notes, promissory notes, bonds or other writing obligatory, 
or stocks of any kind or description whatsoever, or receiving 
money on deposit. 

4th. Collector — Collectors. — County, town, district coiieetars. 
and deputy collectors. 

5th. County Board. — The board of supervisors — the county board, 
board of county commissioners. 

6th. Credits. — Every claim or demand for money, labor, credits, 
interest or other valuable thing, due or to become due, not in- 
cluding money on deposit. 

7th. He. — Male, female, company, corporation, firm, soci-He. 
ety, singular or plural number. 

8th. Money — Moneys. — Gold, silver or other coin, paper Money, 
or other currency used in barter and trade as money, in actual 
possession, and every deposit which the person owning, hold- 
ing in trust, or having the beneficial interest therein, is entitled 
to withdraw in money on demand. 

9th. Number. — The singular number shall include the Number. . 
plural, and the plural number shall include the singular. 

10th. Oath. — Oath or affirmation. Oath. 

11th. Person — Persons. — Male, female, corporation, com- person, 
pany, firm, society, singular or plural number. 

12th. Heal Property — Real Estate — Land — Tract Real property. 
— Lot. — Not only the land itself, whether laid out in town R ea i estate, etc. 
or city lots, or otherwise, with all things contained therein, but 
also all buildings, structures and improvements, and other 
permanent fixtures, of whatsoever kind, thereon, and all rights 
and privileges belonging or in any wise pertaining thereto, 
except where the same may be otherwise denominated by this 
act. 

13th. Shares of Stock — Shares of Capital Stock. — shares of stock, 
The shares into which the capital or stock of every incorporated etc * 
company or association may be divided. 

14th. Tax — Taxes. — Any tax, special assessment or costs, Tax and taxes, 
interest or penalty imposed upon property. 



100 KEVENUE. [DIV. IV. 

Counties not Sec. 293. In all counties not under township organization, 
orgauiStion! 111 * tne coun ty court, or judge of the county court, as the case may 
require, shall perform all the duties required in this act to be 
performed by the county board, or chairman of the county 
board, as the case may be, in such counties, until such time as 
the board of county commissioners shall be duly elected and 
qualified in said counties. 



ART. I.] TOWNSHIP ORGANIZATION. 191 



DIVISION V. 

TOWNSHIP ORGANIZATION— ACT 1861. 
ARTICLE FIRST. 

T AffS 1R61 P 
PROCEEDINGS TO ADOPT TOWNSHIP ORGANIZATION. 216.FEB. 20. 

Section 1. At any general election that may be holden in the ~ Y """' 
several counties in this state, the qualified voters in any county y^fo™™* 7 
may vote for or against township organization in any county in this against adoption, 
state. 

Sec. 2. The county court, on petition of fifty legal voters of said ^on 8 to°be sub 0p " 
county, shall cause to be submitted to the voters of the county the mitted on petf- 
question of township organization, under this act, by ballot, to be tlon * 
written or printed, or partly written or partly printed, " For Town- 
ship Organization," or "Against Township Organization," — to be 
canvassed and returned in like manner as votes for state and 
county officers. (1) 

Sec. 3. The clerk of the county court shall enter an abstract of Election return* 
the returns of said election, to be made out and certified as in elec- Clerk to certify 



returns to au- 
itor. 



tions for state and county officers, record the same at length upon 
the record of the county court of the county, and shall certify the 
same to the auditor of public accounts. 

Sec. 4. If it shall appear by the returns of said election, that a Majority vote 
majority of the legal voters of said county are for township organ- require * 
ization, then the county so voting in favor of its adoption shall be 

(1) Form of Petition to County Court for Submission of Question of Town- 
ship Organization. 

To the honorable the county court of the county of , State of Illinois: 

The undersigned, legal voters of said county of , would respect- 
fully represent, that in their opinion the people of said county desire to 
adopt township organization ; they do therefore petition your honorable 
body to cause to be submitted to the voters of said county, at the next 
general election, to be held on the first Tuesday after the first Monday 
in November next, the question of township organization, that they may 
vote upon the adoption thereof. 

And your petitioners will ever pray. 

Dated this day of , A.D. 18—. 

The power to hold elections for adoption of totcnsJiip organisation, flows 
from the action of the county court. It is not vested in the clerk or other officer; their 
acts, unauthorized, would confer no power to bold an election; hut when the body has 
acted who possess the power, and the officer actiDg under their requirements gives tte 
notice, then the authority of the law has been invoked and properly put into action. The 
statute does not require the order of the county court, submitting the question of township 
organization to a vote of the people, to be spread on the record. If this is neglected, the 
subsequent action of the court to that effect sufficiently proves the making of such order. 
The neglect of the clerk to enter the order should not have the effect to defeat the will of the 
people. People ex rel. v. Garner, 47 111. R-, 247. 



rivers divide. 



*192 TOWNSHIP ORGANIZATION. [DIV. V. 

governed by and subject to the provisions of this act, on and after 
the first Tuesday of April next succeeding : Provided, That a ma- 
jority of the voters voting at such election shall be taken and 
deemed a majority of the voters of said county. (1) 
County court to Sec. 5. The county court shall, at its next session, appoint three 
eionerl to°S3de commissioners, residents of the county, to divide the county into 
county. towns or townships ; and the said commissioners' services shall 

be audited by the first board of supervisors, and paid by the 
county. (2) 
Manner of divid- Sec. 6. The commissioners shall proceed to divide such county 
mgin owns. j n ^ Q ^owns, ^y making as many towns as there are townships, 
Fractional town- according to government surveys. Where fractious of townships 
Bhi P 8 - are caused by the county lines not being in accordance with the sur- 

veyed townships, then the commissioners may attach such fractions 
to adjoining towns, where the number of inhabitants or the amount 
Fractions may be of territory shall not be sufficient for a separate town. Where a 
joined. surveyed township shall have too few inhabitants for a separate 

organization, then such township may be added to some adjoining 
town, or such township may be divided bctw T een two or more towns, 
when creeks or for the time beim*. And when creeks or rivers mav so divide such 
township as to be inconvenient for transacting town business, then 
such creek or river may be made the town boundary, and the town 
fractions so formed may be disposed of as fractions caused by 
county lines. (3) 

(1) Tlve right of a county to adopt township organisation, under the provisions 
of our constitution, is expressly made to depeud uoon aa affirmative vote of a majority of all 
the citizens within the county entitled to vote on. tht> question. The legislature doe3 not 
possess the power to provide any other mode of township organization th*n under and by 
virtue of the sixth section of the seventh article of the constitution. The power of the 
county .court over a business of the countj', continues until the township organization is 
adopted by an affirmative vote of a majority of all the legal voters of a county. People v. 
Broivn et al., 11 111. R., 478. This decision was made under the township act of 1849, which 
was substantially the same as this act on the subject in question, except that by this act it 
is provided that a majority of the voters voting at such election shall be taken and deemed 
a majority of the voters of said county, which is settling the question of evidence, by which 
to determine the majority of legal voters of the county at the time of taking the vote. 

It is a question of some difficulty to determine how it may be ascertained whether the 
majority of the voters of the county have cast their votes in favor of township organiza- 
tion. The registry list of voters is no better evidence of the nnmber of legal voters in a 
district or county than the poll books. The vote cast is prima facie evidence of not only 
the result of the election, but also of the number of legal voters in the county. The reg- 
istry lists do not rebut or overcome this presumption. Persons whose names are put upon 
the registry list, but who do not appear and vote at an election, are presumed to have left 
the election district, and therefore no longer legal voters therein. The People ex rel. v. Gar- 
ner, 47 111. R., 247. 

(2) There is no appeal from the order ot the county court iu declaring township organ- 
ization adopted, or in appointing commissioners to divide the county into towns. The law 
in regard to appeals from orders of that court does not apply to that case. When the question 
of township organization was submitted and declared adopted, and commissioners appointed 
to divide the county into towns, but no action was had. and the matter was again submitted 
after the lapse of several years, and it was again declared in the affirmative, and commis- 
sioners, to divide the county into towns, were again appointed who performed their duties, 
and the county organized accordingly. Held, that the proceeding was valid. That if the 
last election was invalid, the commissioners would be regarded as being appointpd under the 
first vote, which would be regarded as still in force for that purpose, notwithstanding the lapse 
of time and the second submission. People ex rel. v. Garner, 47 111. R., 217. 

(3) In the division of a county into towns by the commissioners, it is the 
intention of the law that it shall be made in accordance with the lines ot" the surveyed 
or government townships, so that each government township shall be set off and erected 
as an organized town under this act, and it is the duty of the commissioners to divide the 
county accordingly; it would seem that they have not authority to divide it otherwise. 
The instances where they can depart from this rale are clearly expressed in the above sec- 



ART. I.] NAMING OF TOWNS. 193 

Sec. 7. Towns shall be named in accordance with the express Naming of 
wish of the inhabitants of the town ; and if there shall not be a 
degree of unanimity as to the name, the commissioners may desig- 
nate the name. 

Sec. 8. The commissioners so appointed shall make a written Report of com- 

„ , . ,. . . r . r , , , „ i misaionera. 

report ot their proceedings, giving the name and bounds oi each 
town, and present such report to the clerk of the county court, on 
or before the first day of March next succeeding. (1). 

tion. The powers of the board of supervisors subsequently to create new towns and change 
town boundaries, are not thus restricted. See Sec. 1, Art. Third, post, p. 90. 

In dividing tlie county into towns the law has laid down a rule to be observed. If 
the commissioners depart from what is believed to be the intention of the law, and excep- 
tions are taken to their report on return, the court would perhaps have power to reject it 
and recommit tbe matter for further actioD of the commissioners, If this is not done the 
report will be regarded as regular, and no question can thereafter be raised to defeat it iu 
that regard. People, ex rel. v. Garner, 47 IU. K., 217. 

(1) Form of Report of Proceedings of Commissioners appointed to divide 
County into Towns, y 

To the honorable the county court of the county of , State of Illinois : 

The undersigned, commissioners appointed by said court at the Decem- 
ber term thereof, A.D. 18 — , to divide said county of into towns, 

agreeably to the statute to provide for township organization, respect- 
fully report that they have performed the duty assigned to them, and 
have divided said county into towns, and given names thereto as follows, 
to-wit: 

All that territory known and described by government survey as town- 
ship number — , of range number — , is erected into a town to be called 
the town of . 

All that.territory known and described, etc., {continue by describing each 
town as aforesaid.) 

All of which is respectfully submitted. 

' A. B., -\ 

C. D., [-Commissioners. 
E.F.J 

Form of Xotice by Clerk of the County Court for first Town Meeting. 

TOWN MEETING NOTICE. 

The citizens of the town of , in the county of , and State of 

Illinois, are hereby notified to meet at [state the place of meeting,) in said 
town, on Tuesday, the day of April, A.D. 18 — , being the first Tues- 
day in said month, at 9 o'clock in the forenoon, and hold their first town 
meeting, for the purpose of organizing said town, in conformity with the 
provisions of the statute; said meeting, when then and there convened, 

1. To choose a moderator to preside at said meeting. 

2. To choose a clerk pro tern, to act at said meeting. 

3. To elect one supervisor, one town clerk, one assessor, one collector, 
one overseer of the poor, three commissioners of highways, two consta- 
bles, two justices of the peace, so many overseers of highways as there 
may be road districts created, and so many pound masters as there may 
be pounds determined upon and established in said town. 

4. To determine upon and appoint the place of holding the next annual 
town meeting. 

5. To [enumerate any further specific subjects that may be thought proper, 
upon ichich the meeting may be called to act, and conclude by adding,) 



194 TOWNSHIP ORGANIZATION. [dIY. V. 

First town meet- g ECi 2. The clerk of the county court shall thereupon make out 

notices for each town, designating a suitable place for holding the 

first town meeting in such town, which shall be holden on the first 

Tuesday of April next thereafter, and shall deliver such notice to 

Sheriff post no- the sheriff of the county, who shall cause the same to be posted in 

tlces - not less than three of the most public places of the township, 

and not less than fifteen days before the first Tuesday in April 

aforesaid. 

Clerks to trans- Sec. 10. Each clerk of the county court shall, within thirty days 

commissioners' after receiving such report of the commissioners, transmit, by mail, 

report to auditor. t the auditor of public accounts of this state, an abstract of such 

report, giving the bounds of each town and the name designated ; 

and said clerk shall record, in a book for the purpose, a description 

of each town as fully as the report of said commissioners. 

Similarity of S EC# n # If the auditor of public accounts, on comparing the 

abstracts of the reports from the several counties, shall find that any 

two or more townships have names alike, he shall transmit to the 

clerk of the county court of the county or counties which have to 

alter the name or names of such town or towns ; and the board of 

supervisors of such county shall, at its next meeting thereafter, 

adopt for such town some name different from those heretofore 

Two towns not to named, so that no two towns organized under this act shall be 

ankt DameS named alike; and when such name shall be adopted, the clerk of 

the county court shall inform the auditor of public accounts, as 

before directed. 

Auditor to record Sec. 12. The auditor of public accounts shall make a record of 

bomSarJes. tne na mes and boundaries of the several towns organized under 

this act. 



And to act upon any additional subjects which, may, in pursuance of 
law, come before the meeting when convened. 

Given under my hand at , in said county of , this day of 

, A.D. 18—. 

C. B. F., 
Clerk of the County Court of County. 

It is probably unnecessary under tbe law to enumerate the subjects upon which the meet- 
ing will be called upon to act, as given in the preceding form, yet it is quite proper to do so 
in giving notice of their first town meeting, as it is presumed the inhabitants generally will 
be unacquainted with the law; such notice will, therefore, serve, in some degree, to inform 
them in advance as to their powers and duties on the occasion, and enable them to be better 
prepared to act. 

The division of towns into road districts has been assigned by this act (Art. 17, Sec. 1,) to 
the commissioners of highways. In the absence of such commissioners, however, at the first 
town meeting, it has been the practice for the electors, when convened, to make this divi- 
sion themselves, to enable them to proceed at the 6amo meeting to the election of overseera 
of highways. To which end it is proper that a committee of three or more, coming from 
different parts of the town, should be appointed at an early hour to \ repare and report a 
plan for such division. 

Towns, although duly described and named by the commissioners, would not attain to tho 
full power of such corporations until a completion of their organization by the election of 
town officers. Wells v. Burbank, 17 N. II. R., 393. 

The supreme court Mill take judicial notice of the fact that a county has adopted township 
organization. County of Rock Island v. Sta'e, 31 111. R-, 543. 



ART. II.] POWERS AND RIGHTS. -j^ 

ARTICLE SECOND. 
OF TIIE POWERS AND RIGHTS OF TOWNS AS BODIES CORPORATE. 

Sec. 1. Each town as a body corporate, lias capacity: towns lty ° f 

1st. To sue and be sued, in the manner prescribed by the laws To eue and be 
of this state. (1) 8ued - 

2nd. To purchase and hold lands within its own limits, and for To P« rcha80 
the use of its inhabitants, subject to the power of the General 
Assembly. (2) 

3rd. To make such contracts, purchase and hold such personal an a k£ ol ° d n p ™!; ta 
property, as may be necessary to the exercise of its corporate or sonai property, 
administrative powers. (3) 

4th. To make such orders for the disposition, regulation or use To make orders 
of its corporate property, as may be deemed conducive to the inter- 
ests of its inhabitants. (4) 

Sec. 2. Xo town shall possess or exercise any corporate powers, Restriction cf 
except such as are enumerated in this act, or shall be specially power ' 
given by law. or shall be necessary to the exercise of the powers 
so enumerated or granted. (5) 

(1) A. toiviisliij) was sited on the following instrument : "The commissioners of highways 
of the township of 11. will pay the bearer twenty dollars, when funds in road district number 
three and four,'' dated and signed by the commissioners. Held that the action could not be 
sustained. Tbe order was too indefinite in its terms. It should show expressly the person 
to wn«m payable, and on what account. M nroe v. Township of Rowland, 11 Mich. R., 348. 
People, v. Town Board of Zdwaukie, 10 Mich. R., 274. 

A township is not liable for interest on damages appraised for laying out a hi-hway. 
Per-p't t. Township Board of La Grange, 2 Mich. R., 187. 

In the absence of some express provision of law, townships are not liable for damages sus- 
tained by individuals in consequence of the non-repair of bridges and highways. And they 
cannot besuljected to such liability through an action against the commissioners of high- 
ways. Cvmm ssioners of Highway* v. Martin, 4 Mich. R., 557. 

A town, in its corporate capacity, cannot maintain an action to vindicate the tax payers 
from an illegal tax. Guilford v. Supervisors Chenango Co., 3 Kern. R., 143. 

(2) A. sufficient and convenient room for elections and town meeting purposes is a 
public use for which the town may purchase and hold a 6ite, and erect a building, if there is 
none thereon, making all necessary contracts theref ir. Such power includes the lesser power 
to Izast a building for these purposes. Town of Beaver Dam v. Frings, 17 Wis. R.. 39S. 

(3) Towns like other corporations have no powers except such as are expressly or 
impliedl v granted to them by tbe legislative power of the state. Baldwin v. North Branford. 
32 Conn R., 47. Booth v. Woodbury, Id., 118. Webs'er v. Harwinton, Id., 131. 

Where a contract is made iu pursuance of a vote of a town, but before the contract is per- 
formed the vote is rescinded, it seems that the person with whom the contract is made is not 
affected by the rescission, unless he had notice thereof, in which case it would be otherwise. 
Allen v. Taunton, 19 Pick. K., 485. 

A town, as such, has no authority to contract with a plank road company, or other corpo- 
ration, granting them the use of a highway in the town; as a corporation a town has no- 
thing to do with, and no interest in the highways within its limits ; the title to the soil is in 
individuals; the rizht to their use belongs to the inhabitants of the town, not exclusively, 
but in common with the whole public. The care and superintendence of highways has been 
committed to certain officers of the town chosen for that purpose, and whose duties are pre- 
scribed by law. See 22 Barb. R., 634. 

(4) TIte above enumerated pou'ers'mc\udPBtha.t of eroc'ing a. suitable building or town 
house, so called, for holding town meetings; for the convenience of town officers, and for 
transacting all town business, 'lhe erection of such a hui'diug. selection of a site, as well 
as purchase of the land thenfor, is under the control and direction of the electors at town 
meeting. The}' may accomplish this by a vote of the electors, or by the appointment of a 
committee with power to act. A very proper course would be to entrust the matter to the 
board of town auditors. See Town of Beaver Dam v. Frings, 17 Wis. R., 398. Kemptonv. S.e'.son, 
13 Mass. R., 271. 

(5) Towns may be considered as quasi corporations, with limited powers co- 
extensive with the duties imposed on them by statute or usage, but restricted from a general 
use of the authority which belongs to corporations bv common law. Rumford v. Wood, 13 
Mass. R., 193. Drake et al. v. Fnillips et al„ 40 111.. R 388. 

These organized towns or townships are not municipal corporations in the sense which the 



19G TOWNSHIP ORGANIZATION. [dIY. 



coiivevacces. 



Proceedings and g EC< 3 jj[ acts or proceedings by or asainst a town, in its cor- 
porate capacity, shall be in the name of such town ; but every con- 
veyance of land within the limits of such town. made, in any man- 
ner, for the use or benefit of its inhabitants, shall have the same 
effect as if made to the town by name. (1) 

ARTICLE THIRD 



AND EFFECT THEREOF OX THEIR CORPORATE RIGHTS. 

Alteration of g EC> ] , The board of supervisors of each county shall have full 

bonndanos and , . ,/.,.. . ,•' .. _ 

new towns. and complete power and jurisdiction to alter the boundar: 

towns, to change town lines, and to divide, enlarge and to create 
new towns, in their respective counties, to suit the convenience of 

1nj4. the inhabitants residing therein ; but no new town shall be created, 

under the provisions of this act. unless there shall be at least thirty 
legal voters residing in such new town, nor unless at least twenty 
of such legal voters of such town shall petition for such alteration ; 

petitions for nor saa }] an y new town hereafter be made or created, or any town 
divided, or the boundaries of any town changed by the board of 
supervisors, within their respective counties, without at least sixty 
days' notice thereof has been given, before the presentation of the 

term is nsed in on* constitution and statutes. Z ley wn r-srarded as quasi corporati - 1 
JOorton t. Peck, 3 Wis. R., 714. And as such hare power to impose taxes for specific purposes 
Drake et al. v F " ■- xL. 40 111.. R. 388. 

Tfie new constitution of Illinois recognizes counties, cities, f/nercs and townships as muni- 
cipalities; Art. on Jinn. Sub to R. R. And it recognizes counties, cities, townships and 
school districts as mm cipal corporati : Al contemplated by the con- 

stitution, a township is a territorial subdivision of a county tor purposes of local government, 
Const., Art. 10. \ 5. Town and Tillage are regarded as synonymous, and meaning the same 
thing. A town or village is a small collection of houses in compact form, which may or may 
not be incorporated. It incorporated, it usually possesses limited powers. A city is a large 
incorporated town, with more extensive powers in accordance with the demands of its popu- 
lation. Its affairs are controlled by a mayor and aldermen. 

In our statutes concerning towmdiif r.-.^ization, the word "town" is nsed as synony- 
mons with I 

The whole power and capacity of towns, as corporations, is derived from and con- 
ferred by statute, and i? specified and confined by certain functions only. Their authority to 
contract or assume liabilil : ~h action is necessary for the exer- 

cise of their appropriate functi - vions. and their power to sue and be sued must 

be limited to cases where the assertion of their corn -rate ri^h**, or the enforcement of their 
corporate J;.. a proceeding. 22 Barb. R., 634. 

It is held ia Ma-s t a town may indemnify its officers against a liability which 

they may incur in the bona fide discharge of their zb. it turn out that they had 

exceeded their legal rights and authority. Bancroft v. Lyrfifl/.. ... -566. 

A town cannotVaake a valid subscription in aid of the construction of a railroad, unless 

expressly authorized by law ; but snch a subscription, if authorized by law. and made in con- 

f. irmitv thereto, is valid and binding on the t^<wn. B'ifhndl v. E R-, 195 Tmm 

of Boeketbr v. Aifr*d Bk, ei al , 13 id., 432. Berliner v. Town of Watertown, 14 id„ 578. 

-" Lima, 19 k\. 2 

» issuing :" bonds and their validity in the hands of inno- 
cent holders and thi-d parties. 

The new constitution of Illinois declaresthat no township shall ever become subscriber 
to the capital Block it* corporation, or make donation to or loan its 

":': in aid of such corporation, Ooxbt , Art. on Mun. Sub. to R. R. or Priv. Corp. 

As to origin and power of towns in Massachusetts, see note to case of CkanmanweaUk t. 
Roxbu-y. 9 L0. oil. 

(1) WJtere a cause of action exists in behalf of a town, and no officer is by statute 
authorized topi cause of action, it is proper for the electors when convened 

at town meeting to direct snch action to be brought, for which purpose they may appoint 
an agent to institute and prosecute the same, but such suit must be brought in the name of 
the town. Cornell v. Guilford, 1 Den. R, 510. 



•UlT. HI.] ALTERATION OP BOUNDARIES. 197 

petition therefor, by posting up not less than five notices in the 1857 - 
most public places of the town or towns interested, and by also 
publishing such notice at least once in some newspaper published Notice, 
in the county wherein said towns are situated, if any shall be 
published therein. 

Sec. 2. In case any town, in any county wherein township organ- Negieot to elect 
ization has been or may be hereafter adopted, shall refuse or neglect town officera - 
to organize and elect town officers, at the time fixed by law for holding 1857. 
annual meetings, it shall be lawful for twelve freeholders of the Freeholders mny 
town to call a town meeting for the purposes aforesaid, by posting ^g. ownmee 
up notices in six public places of said town, giving at least ten days' 
notice of such meeting ; which notice shall set forth the time, place 
and object of such meeting; and the electors, when assembled by 
virtue of such notice, shall have and possess all the powers conferred 
upon them at the annual town meeting. (1) In case no such 
notice shall be given, as aforesaid, within thirty days after the time 
for holding the annual town meeting, the board of supervisors of 
the county shall, upon the affidavit of any freeholder of said town, 
filed in the office of the county clerk or clerk of the board, setting 
forth the facts, proceed, at any regular or special meeting of the 
board, and appoint the necessary town officers for such town ; and Appointment of 
the persons so appointed shall hold their respective offices until J^arYof super y 
others are chosen or appointed in their places, and shall have the visors. , 
same powers, and be subject to the same duties and penalties, as if 
they had been duly chosen by the electors of the town. 

Sec. 3. Whenever it shall be made to appear to the board of Failure to quai- 
supervisors that the town officers appointed by them, or any pre-J^ 
ceding board, as provided in the foregoing section, shall have failed 
to qualify, as required by law, so that such town cannot become 
organized, the board of supervisors may annex such town to any Annex to adjoin- 
adjoining town; and the said town so annexed shall thereafter form ing 
and constitute a part of said adjoining town. 

Sec. 4. When a town seized of real estate shall be divided into Division of real 
two or more towns, the supervisors and assessors of the .several fon^fo^nshYpa 
towns constituted by such division shall meet as soon as may be 1861. 

(1) Form of Notice by Twelve Freeholders calling Town Meeting on default 
of Annual Meeting. 

TOWN MEETING. 

Notice is hereby given by the undersigned, freeholders of the town of 

, in the county of , in the state of Illinois, that a meeting of the 

electors of said town will be held on the day of , A. D. 18 — , at 

(state place) for the purpose of electing all such officers as said town may 
be entitled to by law, and transacting all such business as the electors 
have power to transact at the annual town meeting ; said town having 
neglected to organize and elect town officers at the time fixed by law for 
holding annual meetings, which meeting will be called to order between 
the hours of nine and ten o'clock in' the forenoon, and be kept open 
until six o'clock in the afternoon. 

Dated at , this day of , A. D. 18—. 

(To be signed by twelve freeholders.) 



19g TOWNSHIP ORGANIZATION. [_DIV. V. 

after the first town meetings subsequently held in such towns, and, 
when so met, shall have power to make such agreement concerning 
the disposition to be made of such town property and the apportion- 
ment of the proceeds as shall be equitable, and to take all measures 
and execute all conveyances which may be necessary to carry such 
agreement into effect. (1) 

(1) Form of agreement by Supervisors and Assessors, in case of division of 
Town, concerning disposition and apportionment of Real Estate. 

This agreement, made this day of , A. D. ]8 — , by A. B., 

supervisor, and C. B., assessor of the town of , on the part of said 

town, and E. F., supervisor, and Or. H., assessor of the town of , on 

the part of said town of , in the county of , and state of Illinois, 

witnesseth : That whereas the town of , which formerly comprised 

the territory now composing the aforesaid towns of and , has 

lately been divided by proper authority, into two towns, named and styled 

as aforesaid, (or as the case may be,) and whereas said town of was at 

such division thereof seized of the following real estate, to-wit : [here 
describe the premises.) Now therefore it is agreed by and between said 
supervisors and assessors on the part of their respective towns, that said 
real estate be divided and disposed of for the benefit of said towns, as 
follows: that portion thereof described as follows, (here describe it,) shall 

be and remain the property of said town of , and the balance thereof 

described as follows, (here describe the remaining portion of said premises), be 
sold within three months from this date for the highest sum which the 
same can be sold for, and the proceeds thereof be paid over to said town 

of . 

In witness whereof said supervisors and assessors have hereunto set 
their hands and private seals, the day and year first above written. 

A. B., [seal.] 

Supervisor. 

C. D., [seal.] 

Assessor. 

E. F., [seal.] 

Supervisor. 

G. H., [seal.] 

Assessor. 

Note. — The foregoing form can be varied to suit the circumstances of each case. What- 
ever agreement is made by the supervisors and assessors, should be reduced to 'writing in 
proper form, and a copy filed with the town clerk of each town interested. When a division 
of the property is impracticable, it may be appraised by the supervisors and assessors, and 
the town wherein it is situated may pay ov^r to the other town its equitable share of the 
valuation and retain the whole property, when such course is deemed most advisable. It 
will be seen that the law has clothed the supervisors and assessors with ample authority for 
a proper division of the real estate; it has authorized them to make agreement concerning 
the disposition thereof and such apportionment of proceeds as shall be equitable, and to take 
all measures and execute all conveyances necessary to carry their agreement into effect ; 
therefore when it is agreed that the property or any part thereof shall be sold, the super- 
visors and assessors are authorized to execute the conveyance. A question may arise as to 
who should execute the conveyance, whether the supervisor or assessor of the town wherein 
the real estate is situated, in case of lying all in one town, or whether by the supervisors and 
assessors of the several towns interested. It can do no harm for them all to join in the con- 
veyance. Indeed, such may be the more proper course. 

Form of Deed of Conveyance by Supervisors and Assessors conveying real 
Estate where toicn is divided. 

This indenture, made this day of , A. D., 18 — , between A. B., 

supervisor, and C. B., assessor, of the town of , E. F.. supervisor, 

and G-. H., assessor of the town of , which towns are in the county 

of , and state of Illinois, party of the first part, and L. ML, of said 

county and state, party of the second part, witnesseth : That whereas 



ART. III.] ALTERATION OF BOUNDARIES. 19«j 

Sec. 5. When any such town shall be altered in its limits, by the DivMon of prop- 

n J „ . . .1 erty when bound 

annexing of a part 01 its territory, to another town or towns, the aries altered, 
supervisors and assessors of the town from which such territory 
shall be taken and of the town or towns to which the same sb*>.ll be 1861, 
annexed shall, as soon as may be after such alteration, meet fo/ the 
purpose, and possess the powers provided in the last preceding 
section. 

Sec. 6. When a town, possessed of or entitled to money, rights J 1 ^ ^^™?" 
or credits or other personal estate, shall be so divided or altered, vided or altered, 
such personal estate, including moneys, shall be apportioned between 1861 
the towns interested therein, by the supervisors and assessors of 
such towns, according to the amount of taxable property in the 
town divided or altered, as the same existed immediately before 
such division or alteration — to be ascertained by the last assess- 
ment list of such town ; and such supervisors and assessors shall 
meet, for the purposes aforesaid, as soon as may be after the first 
town meetings subsequently held in such towns. (1) 

said toAvn of has lately been divided by proper authority, and said 

town of erected therefrom, {or as the case may be,) and whereas said 

town of was at the time of such division seized of the following real 

estate, [here describe tlie whole premises,) and whereas it was agreed by the 
supervisors and assessors of each of the aforesaid towns, that the follow- 
ing portion of said real estate should be disposed of for the benefit of said 

town of , {or as the agreement may be,) as being the equitable share 

thereof to which said town would be entitled in consequence of such 
division, to- wit, [here describe the portion of the premises to be disposed of.) 
Now therefore said party of the first part, for and in consideration of the 

sum of dollars paid by said party of the second part, the receipt 

whereof is hereby acknowledged, have and do grant, remise, release, 
convey and confirm unto said party of the second part, and to his heirs 
and assigns forever, all the following described premises, lying and being 

in said town of , in the county of and state of Illinois, to-wit, 

{here describe the premises to be conveyed.) To have and to hold the same, 
together with all and singular the appurtenances and privileges thereunto 
belonging or in any wise appertaining, and all the estate, right, title, 

interest and claim whatever which said towns of and , or either 

of them may have either in law or equity, to the only proper use, benefit 
and behoof of the said party of the second part, his heirs and assigns 
forever. 

In witness whereof, said party of the first part have hereunto set their 

hands and seals, the day and year first above written. 
Signed, sealed and delivered ") 

in the presence of j A. B., [seal.] 

Supervisor. 
C. D., [seal.] 
Assessor. 
E. F., [seal.] 
Supervisor. 
G. H., [seal.] 
Assessor. 
Note. — The foregoing deed should be acknowledged in the usual form. 
(1) The proceedings of the supervisors and assessors ought properly to 
be reduced to writing, as a memorandum showing how and in^what manner the money, 
rights, credits, and other personal property is disposed of or apportioned, and how existing 



200 TOWNSHIP ORGANIZATION. [DIV. V. 

Meeting of asses- g EC# 7. Whenever a meeting of the supervisors and assessors of 

aors and Buper- . J i n 1 • j • -i , • ± rr i 

eors. two or more towns shall be required, in order to carry mto enect 

the provisions of this article, such meeting may be called by either 

1863 • of said supervisors ; but the supervisor calling the same shall give 

at least three days' notice, in writing, to all the other officers of the 
time and place at which such meeting is to be held. (1) 

debts are apportioned, and a copy filed with other papers, if any, with the town clerk of each 
town interested. The following is suggested as a form for such writing or memorandum. 

Form of Proceedings of Supervisors and Assessors in apportioning Property 
in case of Division of Towns. 

At a meeting of the supervisors and assessors of the towns of and 

, in the county of , convened at the office of the town clerk of said 

town of -, on the day of , A. D. 18 — , (if adjournments are had 

state the adjournment,) for the purpose of making agreement concerning 

the disposition of the real estate lately belonging to said town of , 

and apportioning the proceeds thereof according to law in such cases, in 
consequence of a division of the original town of ; also for the pur- 
pose of apportioning between said towns, the money, rights, credits and 
other personal property lately belonging to, and the debts owing by said 

town of , the following proceedings were had. The real estate of said 

original town of was ordered to be disposed of and proceeds appor- 
tioned according to written agreement between said supervisors and 

assessors, dated . Said town was found to be possessed of money to 

the amount of dollars, which was apportioned as follows, (state how 

apportioned.) Said town was found to be entitled to money arising from 

(state the source from which the money is to be derived) to the amount of 

dollars, which was apportioned as follows, (state how apportioned, and con- 
tinue in like manner setting forth all rights, credits and personal property of the 
town, and debts owing, and how apportioned between the towns.) 

A. B., Supervisor of the 

town of 

C. D., Assessor of the 

town of 

E. F., Supervisor of the 

town of 

G-. H., Assessor of the 

town of 

(1) Form of Notice by Supervisor to other Officers to meet and apportion 
Property in ease of Division or Alteration of Town. 

To , supervisor (or assessor) of the town of , county of : 

You are hereby notified that a meeting of the supervisors and assessors 

of the towns of and , will be held at, (state the place where,) on 

Monday, the day of , A, D. 18 — , at the hour of ten o'clock in 

the forenoon, for the purpose of making agreement concerning the disposi- 
tion of the real estate lately belonging to said town of , and appor- 
tioning the proceeds thereof according to the law in such cases, in conse- 
quence of a division of the original town of , and the erection 

therefrom of the town of ; also for the purpose of apportioning 

between said towns the money, rights, credits, and other personal 

property, lately belonging to said town of , at which time and place 

you are respectfully requested to attend. 

Dated at , this day of —— , A. D. 18—. 

J. W. H., 
Supervisor of the town of . 



ART. I V.J TOWN MEETINGS. 201 

Sec. 8. The preceding sections shall not, however, apply to any Burial ground 
cemetery or burial ground, but the same shall belong to the town 
within which it may be situated after a division shall have been made. 186L 

Sec. 9. Debts owing by a town so subdivided or altered shall be Debts, how ap- 
apportioued in the same manner as the personal property of such por 
town ; and each town shall thereafter be charged with its share of i86i. 
such debts, according to such apportionment. 

ARTICLE FOURTH. 
OF TOWN MEETINGS AND THE POWERS OF ELECTORS. 

Sec. 1. The citizens of the several towns of this state, qualified Annual town 
by the constitution to vote at general elections, shall annually assem- meetlD & 3 - 
ble and hold town meetings in their respective towns, on the first Time of holding. 
Tuesday of April, at such place in each town as the electors thereof, 
at their annual town meetings, shall from time to time appoint; (1) Place. 
and notice of the time and place of holding such meeting shall be 
given by the town clerk, by posting up written or printed notices Notice, 
in three of the most public places in said town, at least ten days 
prior to said meeting ; and if there shall be a newspaper published 1861. 
in said town such notice shall be inserted at least once therein, prior 
to said meeting. (2) 

(1) The provision of the constitution referred to above, declares as follows: 

Every person having resided in this state one year, in th6 county ninety days, and in the 
election district thirty days next preceding an election therein, who was an elector in this 
state on the first day of April, in the year of our Lord one thousand eight hundred and forty- 
eight, or obtained a certificate of naturalization before any court of record in this state prior 
to the_first day of January, in the year of our Lord one thousand eight hundred and seventy, 
or who sball be a male citizen of the United States, above the age of twenty-one years, shall 
be entitled to vote at such election. Const. (1870), Art. 7, Sec. 1. 

Each town, acting under township organization, constitutes an election precinct. See post, 
Art. IS, Sec. 1. p. 210. 

A. town meetin g, when properly eonvened at the place appointed at the last annual 
town meeting, may no doubt, by a majority vote of the electors present, adjourn, if found 
necessary for convenience, to another place, where the meeting may proceed with the business 
of the day. If the place adjourned to is at any considerable distance, so as to render it mate- 
rial, the vote for adjournment should not be taken before the hour of ten o'clock in the fore- 
noon at least; sufficient time ought to be afforded for a full expression of the electors, and in 
towns where meetings have not usually convened until a later hour, then such vote 6hould 
not be taken until the arrival of the usual hour of meeting. Gould v. Baker, 8 Cowen, 286. 
But the meeting could not, of course, adjourn to another day. 

The new constitution declares that, "the day of holding the annual township meeting 
shall be uniform throughout the state." Const., Art. 10, Sec. 5. In Cook county the time 
of annual town meeting has been fixed by special law on the first Tuesday after the fir^t 
Holiday in November. The new constitution requires a change in this regard. The consti- 
tution further declares that the General Assembly shall not pass local or special laws in the 
following cases: 

"Regulating county and township affairs. 

"Providing for the election of members of the board of supervisors in townships, incorpo- 
rated towns and cities." Const., Art. 3, Sec. 22. 

(2) Form of Notice for Annual Town Meeting. 

ANNUAL TOWN MEETING. 

The citizens, legal voters of the town of , in the county of , 

and state of Illinois, are hereby notified that the annual town meeting for 
said town will be held at the town hall (state the place where,) in said town, 

on Tuesday, the day of April nest, being the first Tuesday in said 

month, for the purposes following: 

1. To choose a moderator to preside at said meeting. 

2. To elect one supervisor, one town clerk, one assessor, one collector. 



202 TOWNSHIP ORGANIZATION. | DIV. V. 

be elated 6 " tq ^EC. 2 - There shall be chosen at the annual town meeting in 
each town, one supervisor, one town clerk, one assessor, one col- 

1861 lector, one commissioner of highways, two constables, two justices 

ISB7. of the peace, as many overseers of highways as there are road 

districts in the town, and so many pound masters as the electors 
may determine : (1) Provided, That justices of the peace and 

i s72 . constables shall be elected only once in four years, except to 

fill vacancies; and such justices and constables shall be successors 
to precinct justices and constables: Provided further, That any 



one overseer of the poor, one commissioner of highways, two constables, 
two justices of the peace, so many overseers of highways as there are 
road districts in said town, and so many pound masters as the electors 
may determine. 

3. To (add any further specific subjects upon which the meeting may be 
required to act that may be thought proper, and conclude by adding) and to 
act upon any additional subject which may, in pursuance of law, come 
before said meeting, at the proper time, when convened. 

Which meeting shall be called to order between the hours of nine and 
ten o'clock in the forenoon, and be kept open until six o'clock in the 
afternoon. 

Given under my hand at , this day of , A.D. 18 — . 

J. M. T., Town Clerk. 

Tfie foregoing form of notice is in accordance with that in use in the states of New 
England, correspond! • g to the requirements of their statutes, and is similar to that given for 
the first town meeting, ante p. 193. It contains more than the law requires, but this full 
specification of subjects, although not strictly required, is not objectionable. It affords a 
better understanding beforehand, and calls the attention of those concerned more immedi- 
ately to the law, by which they are better prepared to act when the appointed time arrives. 
It is also advisable to 6tate the time, as fixed by law, for convening or calling the meeting to 
order. 

The following is a shorter form, which is suggested as being a substantial compliance with 
the law in giving notice of the annual town meeting, which may be U3ed when desired: 

Another Form of Notice for Annual Town Meeting. 

ANNUAL TOWN MEETING. 

The citizens, legal voters of the town of , in the county of , 

and state of Illinois, are hereby notified that the annual town meeting for 

said town will be held at (state the place where) on the day of April, 

A.D. 18 — , being the first Tuesday in said month, for the purpose, among 
other things, of electing the following officers (here enumerate the town 
officers to be chosen,) and for the transaction of all such other business as 
may, in pursuance of law, come before such meeting when convened ; 
which meeting will be called to order between the hours of nine and ten 
o'clock in the forenoon, and be kept open until six o'clock in the after- 
noon. 

Given under my hand at , this day of March, A.D. 18 — . 

F. D. B., Town Clerk. 

All that the Imv requires is that notice of the time and place of the town meeting 
sball be given. The notice need not be addressed to any one. Baldwin v. North Bradford, 
32 Conn. II., 47. 

The law requiring notice of the annual town meeting to be given is directory. The law 
fixes the time, and the place is fixed by the electors, of which every one is bound to take 
notice; therefore a failure to give the notice, as directed by the law, will not invalidate the 
meeting. 6 Hill R., 646; 3 Denio R., 526. See Augell & Ames on Corp., Sec. 488. People 
v. Peck, 11 Wend. R., 694. 

(1) At the first town meeting in new towns three commissioners of highways are to 
be elected, whose term of office is to be decided by lot. See Art. 18, Sees. 7, 8, post, p. 211. 



ART. IV.] TOWN MEETINGS. 203 

town haying eight hundred or more legal voters shall be entitled to Additional su- 
elect one additional supervisor, styled assistant supervisor. (1) 1861. 

Sec. 2a. The election of trustees of schools shall be on the second i*»w» i860, p. 
Monday of April, annually : Provided, That in counties under town- 
ship organization, the election of trustees in each and every town- schools, 
ship, whose boundaries coincide and are identical with those of the Election at an- 
town, as established under the township organization laws, shall be ou JUJI own m< 
the day of the stated annual town meeting. The annual election School directors, 
of school directors shall be on the first Monday of April. (2) 

Sec. 3. In all towns having a population of more than two thou- ^ofpeace^and 
sand inhabitants, it shall be lawful for the qualified voters thereof constables. 
to elect one justice of the peace and one constable for each and 1854, 
every thousand of its inhabitants, until the population shall reach 
five thousand, after which the number of justices of the peace and 
constables shall not be increased. Said justices of the peace and 
constables shall be elected in the same manner and shall hold their 
offices for the same term of time as other justices of the peace and 
constables. Said justices of the peace shall be commissioned by 
the governor, and shall have the same jurisdiction, power and 
authority, and be subject to the same liabilities, and shall execute 
bond and be sworn in the same manner as other justices of the 
peace. (3) 

Sec. 4. The assessor and commissioners of highways, elected in Fen« viewers. 
every town, shall, by virtue of their office, be fence viewers of such 
town. (4) 

(1) For powers of assistant supervisor, see Art. 8, Sec. 10, post, p. 125. 1 Several 
cities and incorporated villages of the state have authority by special law to elect supervi- 
sors in addition to those provided by this act ; but as the new constitution declares that the 
General Assembly shall not pass any local or special laws providing for the election of mem- 
bers of the board of supervisol sin incorporated towns or cities, it is presumed that those special 
provisions may not long exist. Const., Art. 3, Sec. 22. See Art. 18, Sees. 3 and 11, post 
giving to the cities of Chicago and Peoria one supervisor in each ward, and to the towns of 
East and West Galena each an additional supervisor, 

(2; A. poll book tvliich shows the election of a school trustee for a town, by name, may 
be good, by proving that the town named and the congressional town were the same territoiy, 
and that the former trustees had, before the election, ordered that the school business of the 
township should be done under the particular name stated in the poll book. The postpone- 
ment of an election of a school trustee is wrong. If within the time required by law a suffi- 
cient number of qualified voters organized and held an election, the person so elected wilt 
hold office, notwithstanding an adjournment of the election at another hour in the day, Tt 
will be intended that the election was in the proper county, if the returns were made to tii« 
school commissioner of the county, although the oath of the officer does not in the jurat or 
elsewhere show the name of the county. People ex ret, Kies et al. v. Brewer, 20 111. R., 47-i. 

(3) If a town fails or neglects to elect the number of justices or constables to whirn 
it would be entitled under the law, and should elect a less number, having had a full num- 
ber for the preceding term, this would oust all those of the previous term ; neither could 
hold over on the ground that no one had been elected in his place. Pe>ple v. Jones, 11 
Wend., 81. 

The question is frequently raised whether a person can hold more than one town office at 
the same time. In the absence of any express prohibition by the statute, one person could 
hold 6uch offices at the same time as are not incompatible with each other. At common law 
the only offices incompatible with each other were such as were subordinate and interfering, 
as where one was judicial and the other ministerial, and the latter was directly subordinate 
to the former. Citing liouv. Law Diet., 4 Sergt. & Rawle. Opin. Att'y Gen'l Cole (Minn..) 
vol. 1, p. 260. 

The acceptance of a second office, incompatible with the first, vacates the first office. 2\j- 
ple v. Carrique, 2 Hill R., 93. 

Although a majority of the electors of a town may not attend and vote at a town meeting, 
yot persons receiving a majority of the votes of those that attend, for offices, will be legally 
elected. Opin. Att'y Gen'l Cole (Minn.,) vol. 1, p. 296. 

(4) For powers and duties of fence viewers, see Incloscres and Fences, D.v. VI., post 



204 TOWNSHIP OEGANIZATION. [DIV. IV 



t P ™ er80feIec " Sec. 5. The electors of each town shall have power, at their 
annual town meetings : (1) 

Pounds. 1st. To determine the number of pound masters and the locality 

of pounds. 

Town officers. 2nd. To elect such town officers as may be required to be 
ciioseu. 

Suits. 3rd. To direct the institution and defence of suits at law or in 

equity in all controversies between such town and corporation, indi- 
viduals or other towns. (2) 

d«c P ting e 8 uits! n " 4fch ' To dir ect such sum to be raised in such town for prose- 
cuing or defending such suits, or for the support and maintenance 

Roads and of roads and bridges, or for any other purpose, as they may deem 
" ges. necessary; (3) also, to authorize and require the commissioners of 

If^d ta highways to assess a road tax on all real estate and personal prop- 

1867. ' erty liable to taxation in the town, to any amount not exceeding 

186L thirty cents on each hundred dollars' worth, as valued on the assess- 

ment roll of the previous year. 

Exercise powers. 5th. To take measures and give directions for the exercise of 
their corporate powers. 

and weeds! 8 " 68 6th. ^o make such provisions, by-laws and regulations, and allow 
such rewards for the destruction of Canada thistles or noxious 

(1) Hie powers of the electors to bind the town are conferred by statute, and are 
limited to such acts as are prescribed by law. Cornell v. Guilford, 1 Denio R., 510. 

It is held in Massachusetts that a town may indemnify its officers against a liability which 
they may incur in the bona fide discharge of their duties, although it turn out that they have 
exceeded their legal rights and authority. Bancroft v. Lynfield, 18 Pick. R., 566. 

The electors at town meetings cannot direct an officer of the town to perform any act which 
by law he has not authority to perform, nor to act in any other manner, in the performance 
of his duty, than that which is pointed out by law. Keen v. Stetson, 5 Pick. R., 492. 

In Cook county, in the towns of North Chicago, West Chicago, and South Chicago, the 
powers here given to the electors are conferred upon the board of town auditors, with assist- 
ant and ward supervisors. 

(2) It is held in New Hampshire that towns have a qualified interest in the roadways and 
btidges t> ./ have erected, and may maintain an action on the case for the destruction or 
obstruction of the road, or the conversion of the material. Town of Troy v. Cheshire E. R. 
Cb.RFoster R„ 83. 

Held in Massachusetts that it is competent for the inhabitants of a town to take upon 
themselves the expense of a suit against their agent or servant in which the interests of the 
town are directly involved. Where the servants of the town have made mistakes, which 
have rendered them liable at law, that it is legal and proper for the town to meet the ex- 
pense. Babbitt et al. v. Savoy, 3 Cush. R., 530. 

No action lies against a town for an injury to horses occasioned by the suffering of a public 
highway to become out of repair, and in a ruinous and unsafe condition ; and the electors at 
town meeting have no authority, and cannot, by a majority vote, bind the town by agreeing 
to pay to the owner his damages he has sustained by such injuries. The town could not be 
made liable, it seems, without some express statute to that effect. In most of the New Eng- 
land 6tates such a statute exists. See Morey v. Newfane, 8 Barb. R., 615; also, 17 Johns. 
R., 452. 

If, after a vote of the town not to defend an action brought against it, the supervisor, or 
person representing the town, 6hall nevertheless make a defence, he will not be a competent 
witness in the action, for he will be bound to indemnify the town against the costs of the 
defence. Emerson v. Newberry, 13 Pick. R., 377. 

Where a town having authority to vote a tax for one year, votes it for three or more years, 
the tax voted will be valid for one year. People v. Allen, 43 111. R., 461. 

(3) This provision for raising money was contained in the amendatory act of 1854, and is 
here re-enacted. The electors would not, however, have authority to direct the raising of 
money for any purpose in which the town was not immediately interested, and directlv 
benefited. See People v. Works, 7 Wend., 486; Brake et al. v. Phillips et al., 40 111. R., 389. 

A town may appropriate money to indemnify a board of town officers for expenses incurred 
In defending an action for an alleged libel, contained in a report made by them in good faith. 
in the line of their duty, and in which judgment has been rendered in their favor. Fuller v. 
Groton, 11 Gray (Mass.) R., 310. 

A town cannot levy a tax to refund money voluntarily paid by individuals. Drake et al, 
T. Phillips et al., 40 111., R. 389. 



ART. IV.J POWERS OP ELECTORS. 205 

weeds, as they may deem necessary, and to raise money therefor; 
also, to impose such penalties as they may think proper, not exceed- 
ing twenty-five dollars for each offence, for a violation of any pro- 
visions, by-laws or regulations made as aforesaid. 

7th. To establish and maintain pounds at such places within 
the town as may be deemed' necessary and convenient, and discon- rounds, 
tinue any pounds therein. (1) 18tjl - 

8th. To restrain or prohibit the running at large of cattle, Restraining of 
horses, mules, asses, hogs, sheep or goats; to authorize the dis- animals? 1 ° " 
training, impounding and sale of the same for penalties incurred 18gl 
and the costs of the proceedings, and to determine the time and 
mauuer in w T hich such animals may go at large. (2) * 

(1) Location of Pounds. — It seems to be the policy of the law that pounds shall have 
a fixed aud known locality. This is necessary, that all parties interested may take notice of 
where to apply in case of animals impounded. If no public pound has been erected by the 
town, it would be proper lo designate any particular enclosure named, as a pound for the 
time being. In case neither course is adopted, it would no doubt be proper for the town by 
its by-laws to authorize a person to impound animals in his private enclosure, by giving im- 
mediate personal notice to the owner. Anthony v. Anthony, 6 Allen (Mass.) R., 418. 

Trespass will lie where a pound master allows impounded cattle to be driven away for 
pasture, or when there is unreasonable delay in ccmplying with the law or regulations of tho 
town. Cate v. Cate, 44 New Ilamp. R , 211. Harriman v. Fifield, 36 Vt. R., 341. 

(2) The rule of common latv, which requires the owner of cattle, horses and other 
animals, to keep them on his own land, is not in force in Illinois. Seeley v Peters, 5 Gilm. 
R., 130. Misner v. Lighthall, 13 111. R., 609. Therefore the legislature Las given to towns 
the power to restrain and prohibit such animals from going at large, should they think 
proper to do so. There is no general law in Illinois prohibiting such animals as are enume- 
rated in this section from running at large in the highway. Seeley v. Peters, 5 Gilm. R., 130. 

A vote of a town to restrain cattle or other animals from going at large within the limits 
of the town, is binding upon persons not inhabitants, whose animals are tound going at large. 
Gihnore v. Holt, 4 Pick. R., 258. Ames et al. v. Carlton, 41 III. R., 262. 

Any by-law of a town declaring that all hogs should be k -pt up, only extends to prevent 
hogs from going at large on the highway ; and it ceenis that a town has no power to prevent 
the'inhabitants from allowing their own hogs and other animals to go at large upon their 
own land. Shepard v Hees, 12 John. R., 433. 

But the owner of animals running at large would be liable to the damage they may do. 

Towns have the right to make by-latcs or ordinances prohibiting cattle and other 
animals from running at large. The owner of animals running at large, contrary to such 
by-laws or ordinances, will be liable for trespass if his cattle go upon the land of others. A 
justice of the peace has jurisdiction in an action of trespass for damages in such cases. 
Thus, a suit was brought by A. against B. before a justice of the peace. The cause went to 
the circuit court by appeal, when it was tried upon the following agreed state of facts "The 
plaintiff is a resident of the town of Nevada, and the defendant is a resident of the town of 
Sunbury, lying adjoining in the same county. The defendant's cattle were running at large 
in the town of Sunbury ; and, while so running at large, crossed the town line into the town 
of Nevada, and did damage to the plaintiff's crops to the amount of five dollars. The plain- 
tiffs crop was protected by no fence further than required by the ordinance hereinafter set 
forth. The town of Nevada had adopted the following ordinance or by-laws. 

1. The outside edge of cultivated lands shall be a good and lawful close or fence for all 
purposes in law. 

2. No cattle, horses, mules, asses, hogs or sheep, shall be permitted to run at large in the 
town of Nevada, in the county of Livingston, and state of Illinois. 

The court found for the plaintiff, and the cause was taken to the supreme court, aud judg- 
medt affirmed. The court say, Lawrence, Justice : 

The statute authorizes every town to prohibit the running at large of cattle, horses, etc. 
This town did so. Under the operation of this ordinance, cattle running at large were run- 
ning in violation of law, and their entry upon the premises of a stranger was a trespass, aa 
at common law. Justices have j urisdiction of the action of trespass to real estate, and would 
therefore have jurisdiction of an action brought to recover damages for injuries done by 
cattle illegally at large. The special remedy given by the ordinance is simply cumulative, 
and could not oust the justice of a general jurisdiction given him by the statute. The only 
question for him to decide was, whether the defendants cattle had illegally gone on the 
land of the plaintiff. If a trespass, the owner was liable for any damages done, and these 
damages could be recovered before any tribunal having jurisdiction of the parties and of the 
action of trespass. Judgment affirmed. Ames et al. v. Carlton, 41 111. R., 262. 

A. person distraining cattle running at large, contrary to the regulations of the town* 
must drive them to the pound in a reasonable time, considering the circumstances. As to 
what is a reasonab le time is a fact to be determined in the trial. Mere delay in instituting 
* Soc post, p, 2-32. 



206 TOWNSHIP ORGANIZATION. [dIV. IV. 

proceedings in the case, does not make him a \rrong4oer from the beginning. Drew v. 
Spauldit,g, 45 New Hamp. R., 472. 

A person at his father's on a visit, impounded cattle found upon his father's farm, with the 
approbation of his father, who sent a boy to help him. Meld, that the son's act in impound- 
ing the cattle was, in legal effect, the act of his father. 

An impounder of cattle has aright to use the same force to maintain his possession of 
them that a sheriff has to protect his possession of property taken by him on legal process. 
A person who takes possession of cattle for the purpose of impounding them, does not, by 
afterwards abandoning his design, become a trespasser ab initio, as to become liable for force, 
which he used in defence of such possession before giving it up. Barrows v. Fassett, 36 Vt. 
K.. 625. 

Trover lies for an animal wrongly impounded ; and under the general issue, the defendant 
may show that the animal was unlawfully at large. Brew v. Spaulding, 45 New Hamp. R., 
472. 

When a statute provided for the impounding of animals found " wandering, straying or 
lyiDg " about the road : it was held, that horses grazing on the side of a turnpike, under 
the control of a man in charge of them, were not liable to be impounded under this pro- 
vision. Morris v. Jeffries, Law Rep., 12 B., 261. 

A.n ordinance of a town for distraining stoclz from running at large, provided, 
among other things, that if the owner failed to reclaim them within a certain time, " and 
pay all costs of impounding and the damages which the stock may have done — the damages 
to be assessed by three disinterested men, citizens of the town." they should be sold to 
satisfy such costs and damages. Held, that the ordinance was unconstitutional and void ; 
that the proceeding being one for damages, the owner was entitled to atrial by jury the 
same as in anv other case at law. and could not be deprived of such right. Bullock v. Geom- 
Lle, 45 111. R..*218. Willis v. Segris, id.. 2S9. 

The law which gives to towns the power to restrain or prohibit the running at large of 
certain animals, and authorizes the distraining, impounding and sale of the same for pen- 
alties incurred, and the costs of the proceedings, does not give to towns the power to confer 
upon any of its officers authority to make sales for impounding animals, except upon the con- 
tingency that penalties have been incurred. A proceeding to ascertain whether a penalty 
has been incurred, is one purely judicial in its character, and involves a power which cannot 
be exercised by the pound master by virtue of his office ; nor can a town, by its by-laws, 
authorize him to sell property to satisfy a forfeiture for the violation of a law or ordinance, 
without a judicial ascertainment that there has been such violation. And a sale of property 
by the pound master, without a judicial ascertainment being first had, will not divest the 
owner of his title. Poppen v. Holmes, 44 111. R. 360 ; Willis v. Segris, 45 111. R., 293 ; Cale 
v. Cate, 44 New Hamp. R. 211. 

In the case of Poppen v. Holmes, 44 HI. R., 360, the court say. Lawrevce, J. : 

It will be observed that the power to make sales, is given only for penalties incurred and the 
cost cf the proceedings, and a town cannot by its by-laws confer 6uch authority upon iis 
officers in any other contingency. But to ascertain whether a penalty has been incurred or 
not, is a proceeding purely judicial in its character, and that power cannot be exercised by 
the pound mastei by virtue of his office. The by-law may impose a reasonable penalty for 
the offence of allowing animals to run at large, may authorize the animals to be impounded, 
and may direct an inquiry to be had before a magistrate as to whether the penalty has been 
incurred, with a right of trial by jury. If it has been incurred, the magistrate may be di- 
rected to enter judgment against the owner for the penalty and costs, and an order directing 
the pound master to sell the property. If the owner is known he should receive personal 
notice, and if not known, there may be constructive notice to him, as the unknown owner 
of the impounded property, by posting, the property being described in the notices. A by- 
law thus framed would be free from objection ; but one which authorizes the pound master 
to sell property without a judicial ascertainment that some law has been violated, would 
confer upon the pound master a species of power never contemplated by the statute above 
quoted, to say nothing of constitutional objections to its exercise." See also Willis v. Segris, 
45 111. R., 289. 

In the absence of any express provision of law prescribing the mode of proceeding to 
establish the fact that a penalty has been incurred, the court held that it may be provided 
by the town by-laws, and point out particularly the provisions that may be made. The fol- 
lowing form of by-laws, and forms of proceeding, are therefore given in conformity with the 
suggestions of the court. 

Form of By-Laws to prohibit Cattle and other animals Running at Large. 

The town of in the county of in the State of Illinois, by the 

electors thereof, duly assembled, do adopt the following by-laws : 

Section 1. No cattle, horses, mules, asses, hogs, sheep or goats, shall 

hereafter be permitted to run at large in the town of . Persons 

owning any such animals, who shall allow them to run at large, shall 
incur a penalty of dollars for each animal found running at large. 

Sec. 2. Whenever any animals named in the first section, are here- 
after found running at large, it shall be the duty of the pound master 
to cause them to be taken and placed in the public pound. And it shall 
be lawful for any person to take such animals to the pound, and cause 
them to be impounded. 



ART. TV.] IMPOUNDING ANIMALS. 207 

Sec. 8. Wherever any such animals arc placed in the pound, it shall 
be the duty of the pound master to make complaint at once to some 
justice of the peace of the town, and apply for proceedings to adjudge 
against the owner the penalty incurred, stating the name of the owner, 
if known to him, and the number and kind of animals. If the owner 
is not known, then giving a description of the animals. 

Sec. 4. The justice shall thereupon issue a notice in writing to the 
owner of said animals, stating the facts of impounding, and fixing 

therein a time not exceeding days thereafter, when said complaint 

will be heard, which notice shall be served at least day before the 

time of hearing the complaint. In case the owner is not known, then 
the notice shall describe the animals and be posted by the pound master 

in five public places of the town, for days before the time fixed 

for such hearing. 

Sec. 5. It shall be the duty of the pound master to attend before the 
justice at the time fixed for the hearing as aforesaid, and present the 
facts in the case. The cause shall be tried by a jury, unless waived 
by the owner, and shall be conducted as other causes of like nature 
are conducted before justices of the peace. If the owner is found guilty, 
the justice shall enter judgment against him for the penalty as herein 
prescribed, and costs, and shall enter an order directing the pound mas- 
ter to sell the property to make the fine and costs. 

Sec. C. "Whenever animals are impounded, it shall be the duty of the 
pound master to supply them with proper food and drink during the 
time they remain. The value thereof, with services for feeding, to be 
shown on trial, shall be allowed as costs against the owner. 

Form of Notice by Justice to owner of Animals Impounded. 
To A. B., 

You are hereby notified that C. D., the pound master of the town of 

, has this day complained to me that on this day of , 

18 — , three cows, of which you are the owner, were found by him run- 
ning at large in said town, at [state the place where,) contrary to the 
by-laws of the town, ss he alleges, whereby you have incurred the 
penalty prescribed. That he did thereupon cause said cows to be im- 
pounded in the public pound of the town, [if there are more than one 
pound, state ichich the animals are in,) where they now remain, and that 
said complaint will be heard before me at my office in said town, on 
the day of , 18 — , at — o'clock — M. 

Witness my hand this day of , 18 — . 

E. F., 
Justice of the Peace. 

Note. — The notice may be served by the pound master or any constable. 

Form of Notice by Justice, where owner of Impounded Animals is not known. 
To whom it may concern: 

The unknown owners of the animals, hereinafter described, are hereby 

notified that C. D., the pound master of the town of , has this day 

complained to me that on day of , 18 — , three cows, one a brin- 

dle, and two of a deep red, color, each about six years old, of which the 
owner is unknown, were found by him running at large in said town, at 
(state the place where,) contrary to the by-laws of the town, as he alleges, 
whereby the owner has incurred the penalty prescribed. That he did 
thereupon cause said animals to be impounded in the public pound of said 
town, ("if there are several pounds, state ivhich the animals are in,) where they 
now remain, and that said complaint will be heard before me at my office 
in said town, on the day of , 18 — , at — o'clock, — M. 

Witness my hand this day of , 18 — . 

E. F., 
Justice of the Peace. 



208 



TOWNSHIP -ORGANIZATION. 



[DIV. IV. 



1857. 



Penalties. 



Except fences. 
1861. 



9th. To make rules and regulations for ascertaining the suffi- 
ciency of all fences in such towns, and to determine what shall be 
a lawful fence within such town. (1) 

10th. To impose such penalties on persons offending against any 
rule, regulation or by-laws, established by such town, except such 
as relate to the keeping and maintaining of fences, as they may 
think proper, not exceeding ten dollars for each offence, unless a 



different penalty is provided by law, and 
ties incurred or paid. (2) 



to remit or refund penal- 



Form of Docket entry, on hearing Complaint against Owner of Impounded 

Animals. 



State of Illinois, 1 -r> „ ™ n t *• .cn.-o 
p , n ' V Before E. F., Justice of the P< 



I 



Town of- 

vs. [ Complaint of C. D., pound master. 

A. B. J 

18 — , July 2d, C. D., pound master, complains of A. B. for allowing 
three certain cows to run at large, contrary to the by-laws of said town 

of , which animals he did this day cause to be impounded. Notice is 

issued to said A. B. that said complaint will be heard July 5, 18 — , at — 
o'clock, — M. Notice returned served on said A. B. at date, by pound 
master. 

July 5, — o'clock, — M., pound master appears; said A. B. also 
appears ; jury of twelve men summoned, and sworn to try the matter in 
issue. The allegations of the parties, and proofs, are heard. The jury 
find that the complaint herein is true, and assess a fine against A. B. of 
fifteen dollars. Judgment is therefore rendered against said A; B. for 

said sum of fifteen dollars for said fine, and the costs herein taxed, at 

dollars and — ■. — cents. And it is ordered that the pound master proceed 
and sell said animals impounded as aforesaid, to make the amount of said 
fine and costs in accordance with the statute in such cases made and pro- 
vided, unless the same shall be paid before the sale. 

E. F., 
Justice of the Peace. 

As will bo seen, the law provides that sales of cattle impounded shall be conducted, as near 
as may be, according to the statute in case of constables' sales. See sec. 6. 

(1) In order to maintain, an action, of trespass for damage done by cattle or 
other animals, the ownf-r of the close must show that it was protected by a good and suffi- 
cient fence. Seeley v. Peters, 5 Gi!m. R., 130; Misner v. Lighthall, 13 111. R., G09. Or such 
a fence as the electors of the town had determined to be a lawful fence. 

Where, in a field occupied by several persons, there is an inner fence, one of the occupants 
of the field can not remove such inner fence at pleasure, though he may be the owner thereof, 
without rendering himself liable to his co-occupant for any damages resulting therefrom. 
Nor is it any defence to an action of trespass, growing out of the removal of the inner fence, 
to show that the complaining party was bound to keep the outer fence in repair, or that he 
might have repaired the same at small expense. Buckmaster v. Cool, 12 111. R., 74. 

An ox, which was allowed by the owner to graze on a common, entered a field which was 
not enclosed by a lawful fence, and died in consequence of»eating corn therein. Held, that 
the owner of the ox could not recover its value of the owner of the corn, as the latter was 
under no obligation to feuce his field as against the public, being by law permissive. Hernld 
v. Myers, 20 Iowa R., 378. This rule would apply in Illinois where a town had prohibited 
cattle from running at large. 

A person, into whose field cattle have strayed through defect offences which he was bound 
to repair, can not distrain them damage feasant (doing damage) in another field iuto which 
they have got by breaking through a hedge which he kept in good repair, since his neglect 
was the original cause of the mischief. Singleton v. Williamson, 7 Hurl. & Nor. R., 410. 

(2) Where a by-law or ordinance of a town simply declares what shall constitute a mifl- 
demeanor, without prescribing any penalty therefor, no recovery can be had for violation of 
such by-law or ordinance. Bowman et al. v. St. John, 43 111. R. 337. 

In an action to recover a penalty for violating a by-law or ordinance of a town, it must 



ART. IV.J POWERS OF ELECTORS. 209 

11th. To apply all penalties, when collected, in such manner as A PP ] y penalties 
they may deem most conducive to the interests of the town. 

12th. To make all such by-laws as may be necessary to carry By-laws, 
into effect the powers herein granted. (1) Whenever the electors 
of any town shall determine, at town meeting, to erect one or more 
pounds therein, the same shall be under the care and direction of £™e car^of* 
such pound masters as shall be chosen and appointed for that pur- pounds.] 
pose. 

Sec. 5a. It shall be lawful for the legal voters, at any annual Jgw 18( » 7 > p- 
town meeting, to levy a tax for the purpose of building or repairing Le gai voters maj 
bridges or causeways, situated in another town in the same county, «vy tax. 
or in another county : Provided, That notice is given, by posting Notice given by 
notices describing the location of the bridge or causeway, and the P° stlD s- 
probable amount required therefor, in at least three public places, 
at least ten days before said annual meeting, in the town in which 
said taxes are proposed to be levied : And, also, provided, That such Tax » bow P aid 
tax, when collected, shall be paid on the joint order of the com- 
missioners of highways of the town in which the bridge or cause- 
way to be built or repaired, is situated, and of the commissioners 
of highways of the town in which said tax is collected. 

Sec. 6. The sale of animals distrained or impounded, under the f^ le 0U Q^ mal8 
provisions herein, shall be conducted as near as may be according 
to the law regulating sales of property by constables under execu- 1861, 
tion. (2) The owner of such animals shall have the right to 

appear affirmatively that the act complained of occurred after the by-law or ordinance took 
effect. It wquW be error to render judgment for the penalty without such proof. Debt is 
the proper form of action in such case. In bringing such action before a justice of the 
peace, which may be done where the amount does uot exceed one hundred dollars, an affidavit 
or complaint in writing on which to base it is unnecessary. The action cun be commenced 
in the same manner a« an ordinary action of debt before a justice of the peace. The sum- 
mons may be in the usual form for civil cases. A bond for costs, as in penal actions under 
the statute, is not necessary. Town of Jacksonville v. Black et al., 36 111. R., 507 ; Town of 
Ltwistown v. Proctor, 23 111. R., 533. 

(1) A. by-law is a rule obligatory on a body of persons, or over a particular district, not 
being at variance with the general laws of the state, and being reasonable and adapted to the 
purposes of the corporation ; and any rule or ordinance of a permanent character which a 
corporation is empowered to make, either by the common or statute law, is a by-law. It is 
a rule made prospectively and to be applied whenever the circumstances arise for which it is 
intended to provide. A by-law can not impose an oath, unless empowered to do so, for that 
is contrary to the common law. By-laws are binding upon all the inhabitants of the town ; 
and every stranger, though merely coming within the limits of the town, is bound at his 
peril to take notice of all its by-laws, provided it is said the object of the by-lawn be to sup- 
press a general inconvenience or defeat fraud. Grant on Corporations, 76, 77. 

(2) The law regulating sales of property by constables under execution, provides that the 
constable " 6hall appoint a day aud hour for th:- sale of 6aid property, giving ten days' pre- 
vious notice of such sale, by advertisement in writing to be posted up at three of the most 
public places in the county ; and on the day so appointed, the said constable shall sell the 
property 60 levied on, or so much thereof as may be necessary to pay the debt, interest and 
costs, to the highest bidder." Rev. Stat., 326, Sec. 79. The property should be sold by the 
pound master, in the town, at some convenient public place to be set forth in the notice of 
sale. Ths following may be the form of the notice of sale. 

Form of Pound Master's Notice of Sale. 
tound master's sale. 
Notice is hereby given that the undersigned, pound master for the town 

of , in the county of , and state of Illinois, by virtue of authority 

in him vested, will on the day of A.D. 18—, at the hour of — 

o'clock M., at [state place) in said town, offer for sale and sell to the 
highest bidder, the following described animals, to wit : {describe the am- 



210 



TOWXSHIP ORGANIZATION. 



[DIV. IV. 



Redemption. 



Publication of 
by-lavs. 



1861. 



redeem the same from the purchaser thereof, any time within three 
months from the date of sale, by paying the amount of the pur- 
chaser's bid, with interest thereon at the rate of ten per cent, per 
annum. 

Sec. 7. It shall be the duty of the town clerk to cause all by- 
laws, rules and regulations of the town, within twenty days after 
their adoption, to be published by posting in three public places in 
the town; also, if the town shall so direct, causing the same to be 
inserted once in a newspaper published in the town, if any there 
shall be; if not, then in any newspaper published in the county; 
but all such by-laws, rules and regulations shall take effect and be 
in force from the date of being adopted, unless otherwise directed 
by the electors of the town. 



SPECIAL TOWN MEETINGS. 



Special town 
meetings. 

When may be 
held. 



Sec. 8. Special town meetings shall be held when the supervisor, 
town clerk and justice of the peace, or any two of them, together 
with at least twelve freeholders of the town, shall, in writing, file 
in the office of the town clerk a statement that a special meeting is 
necessary to the interest of the town, setting forth the object of 
the meeting ; and the town clerk, or, in case of his absence, the 
supervisor, shall post up notices in five of the most public places 
in the town, giving at least ten days' notice of such special town 
meeting, setting forth the object of the meeting, as contained in the 
statement filed in his office. Such notice shall likewise be inserted 
at least once in a newspaper published in the town, if any is pub- 
£??SL f holdiD & lished therein. The place of holding special town meetings shall 
be at the place where the last annual town meeting was held ; but 



1801. 



Notice. 



meeting. 



mals particularly) said animals having been duly distrained and impounded 

for a fine of dollars, incurred in consequence of the same running at 

large in said town, contrary to the by-laws thereof. Said animals will 
be sold as aforesaid, in satisfaction of said fine and costs of proceedings. 

Dated this day of A.D. 18—. 

J. S., Pound Master. 

The pound master, in tailing up animals and proceeding to sell them, must pursue 
the law and regulations of the town strictly, or the proceedings will be invalid, and the pur- 
chaser, at his sale, will acquire no title to the property. Rex v. Crook, 1 Cowper R., 26 ; 
Clark v. Lewis, 85 111. R., 420. 

Under an ordinance of a town prohibiting the running at large of certain animals except 
at certain seasons of the year, and authorizing the impounding of the same, and their sale 
after giving notice, the pound master has no authority to act unless the animals are running 
at large and at a time prohibited by the ordinance, and he will become a trespasser if he acts 
without authority. If he is sued for the property he must prove that the animals were in 
that situation which the ordinance designated. The mere fact that he is an officer of the 
law is not sufficient, he must show that he acted lawfully. Nor can the purchaser at a 
pound master's sale establish his title against the former owner by mere proof of the sale ; 
he must establish its validity by showing the authority, which can not be presumed. 

Where the ordinance requires that not less than ten days' notice shall be given before a 
sale of an impounded animal shall be made, this is an essential pre-requisite of such a sale, 
and can not be dispensed with by the officer. An abridgment of the time for the shortest 
period must avoid the sale. Nor can the sale be sustained where the pound master sells two 
animals, belonging to different owners, together at the same bidding. They should be sold 
separately. Clark v. Lewis, 35 111. R., 418. 



4RT. IV.] SPECIAL TOWN MEETINGS. 211 

in case such place' shall be found inconvenient, the meeting may 
adjourn to the nearest convenient place. (1) 

(1) Fo'm of Statement to be filed in the Office of Town Clerk, for Special 
Town Meeting. 

The undersigned, town officers and twelve freeholders of the town of 
In the county of , do state that a special town meeting is neces- 
sary to the interest of said town for the purpose of [here set forth the object 
of the meeting.) 

Vie would therefore request that immediate notice be given thereof; 
and that such meeting be held on the day of A.D. 18 — . 

Witness our hands this day of , A.D. 18 — . 

L. B., Supervisor. 

S. W. M., Town Clerk. 

n g -J 

j' p"' v Justices of the Peace. 

(Names of 12 others), 

Freeholders of the Town. 

Form of Notice for holding Special Town Meeting. 

SPECIAL TOWN MEETING. 

Whereas, the supervisor, town clerk, and justices of the peace [or as 

the case may be) together with twelve freeholders of the town of have, 

in writing, filed in my office a statement that a special town meeting is 
necessary to the interest of said town, setting forth the object of the 
meeting. 

The inhabitants, legal voters of the said town of , are therefore 

hereby notified, that a special town meeting will be held at , on the 

day of , A.D. 18 — , at 9 o'clock in the forenoon, for the purposes 

following, to wit. : 

To (here enumerate specifically in proper order the subjects to be acted upon 
as contained in the statement filed.) 

Being the objects contained in the said statement filed in my office. 

Given under my hand at this day of A.D. 18 — . 

S. W. M., Town Clerk. 

Note. — The notice should contain substantially the saine objects set forth in the request for 
the special meeting. 

To render a special town meeting legal, it should appear that a statement, as 
required by law, tbar (he meeting was necessary, was filed in the office of the town clerk. 
The record of a special town meeting, reciting the filing of the proper statement, would be 
sufficient prima facie to show such fact. Brown v. Witham, 51 Maine R., 29; Leminqton 
v. Bb.dgoM, 37 III. R , 210. 

It is held in New York that special town meetings have no jurisdiction to act upon any 
subject not specially conferred upon such meetings by law. That the powers conferred upon 
the electors at the annual town meeting can not be extended by implication to special town 
meetings. People v. Works, 7 Wend. R., 486. By the statute of New York, special town 
meetings have power, specially given, to supply vacancies in certain cases: to raise moneys 
for the surport of common schouls, or the poor, when those subjects were not acted upon at 
the annual town meeting; and to deliberate in regard to suits for or against the town, and 
to raise moneys therefor. And it is decided that they have no other power. See s^me' case 
before cited. This decision will apply with equal force to our own law. It will be observed, 
however, that special town meetings have authority to act upon any subject within the power 
of the electors at the annual town meeting where the subject was postponed for the consid- 
eration of a special meeting When it is desired to postpone the consideration of any subject 
to a subsequent special town meeting, the proposition should be reduced to writing in the 
form of a resolution or order, and being adopted by t\\o met ting, should bo recorded by the 
clerk upon the minutes of the proceedings of the meeting, that in case of controversy it may 
be shown with certainty what subjects were postponed or laid over. The policy of postponing 
subjects fur the action of special town meetings should never be adopted unless it btc >mes 
absolutely necessary from want of time for action at the annual meeting, or like cause; Rich 
a policy must always more or less endanger the rights of individuals, and tend to confusion 
and dissatisfaction. 



212 TOWNSHIP ORGANIZATION. [dIV. IV. 



Power of elec- 
tors. 



Sec. 9. The electors, at special town meetings, when properly 

convened, shall have power : 
To au vacancies. 1st. To fill vacancies in the office of justices of the peace, and 
M6L to fill vacancies in the offices of constable, or any town officer, where 

the same shall not have been already filled by appointment. 
To raise money 2nd. To provide for raising money for repairing highways or 
1561." gea * building or repairing bridges, in cases of emergency, and to direct 

the building or repairing thereof. 
finished S b Ct sine-3 ^ r ^" "^° act u P on an y subject within the power of the electors at 
1S6L the annual town meeting, which was postponed at the preceding 

annual town meeting, to be considered at a future special town 
pamS?*" ° f meeting, for want of time. But special town meetings shall have 

no power to act on any subject not embraced in the statement and 

notice calling the same. 
Privilege from Sec. 10. During the day on which any annual or special town 
1361. " meeting shall be held, every person in the town, entitled to vote at 

such town meeting, shall be privileged from arrest, in all cases, 

except treason, felony, or breach of the peace. 

ARTICLE FIFTH. 
OF THE METHOD OF CONDUCTING TOWN MEETINGS. (1) 

u^mee £nJ! aS Sec - L The electors present at any time between the hours of 
nine and ten (10) o'clock in the forenoon of the day on which 
there is an annual or special town meeting, shall be called to order 
by the town clerk, if there be one. In case there be none, or he 

(1) Mules for town meetings. — Town meetings here provided, are conventions or 
assemblies of the legal voters of the town, forming what is termed deliberative assemblies, f >r 
the transaction of certain business, pertaining to their immediate local interests, — exercising 
certain inherent powers, not delegated to their representatives, each elector appearing and 
acting for himself, and being accountable to no one for his acts as such. Meetings of this 
kind are conducted according to certain rales which experience has shown to be fit and neces- 
sary far that purpose. The rules necessary in conducting the ordinary business of a town 
meeting are few and simple, and are such as would occur to the good sense of every man of 
ordinary intelligence. In disposing of business properly and with dispatch, much depends 
upon the moderator or presiding officer; if he thoroughly understands his duties, and per- 
f rat then property and promptly, he will greatly facilitate the business of the meeting. 
The general duties of the presiding officer, as laid down in the books of p irliamentary prac- 
tice, are the following: 

To open the sitting, at the time to which the assembly is adjourned, by taking the chair 
and calling the members to order. 

To announce the business before the assembly in the order in which it is to be acted 
upon. 

To receive and submit, in the proper manner, all motions and propositions presented by 
the members. 

To put to vote all questions which are regularly moved, or necessarily arise in the course of 
the proceedings, and to announce the result. 

To restrain the members, when engaged in debate, within the rules of order. 

To enf Tee, on all occasions, the observance of order and decorum among members. 

To receive all messages and other communications and announce them to the assembly. 

To inform the assembly, when necessary, or when referred to for the purpose, in a point of 
order or practice. 

To Dane the members (when directed to do so in a particular case, or when it is made a 
part cf his general duty by a rule.) who are to serve on committees ; and, in general. 

To represent and stand for the assembly, declaring its will, and, in all things, obeying 
implicitly its commands. Cashing'* Manual. 

The moderator will find, upon examination, that the most important of hi3 duties have 
been defined by this act. 

It is made the duty of the moderator, as will be seen, to regulate the business and procepd- 
Ings of the meeting. After the meeting is fully organized, by the election and qualification 



ART. V.J CONDUCTING TOWN MEETINGS. 213 

is not present, then the voters may elect, by acclamation, one of 

their number chairman. They shall then proceed to choose one of Choose modera- 

their number to preside as moderator of such town meeting, (1) 

Sec. 2. Before the moderator or the presiding officer of any town 
meeting shall enter upon the duties of his office, he shall take an Oath of office of 
oath faithfully and impartially to discharge the duties of such office; m 
which oath may be administered by the town clerk or other proper 
officer. (2) / 



of the proper officers, he 6hould announce that the meeting is organized and ready to proceed 
to business, — that the first business in order will be the opening of the polls and proceeding 
to the election of such officers of the town as are to be elected by ballot. At the hour of two 
o'clock P. M., he should announce that the hour of two o'clock in the afternoon having 
arrived, the general businees of the day, as provided bylaw, is in order. He should then 
direct the order in which the various subjects for action should be taken up, and announce 
each as it comes up in its order for action. 

It is the practice with all legislative assemblies to adopt standing rules for their govern- 
ment, which the presiding officer is to observe and enforce. It wculd not be improper for 
the electors of a town at town meeting to pursue a similar course, and adopt standing roles 
regulating the order of business and the manner of conducting all town meetings, not incon- 
sistent with the law, to be observed and enforced by the moderator ; this would greatly facili- 
tate business, secure uniformity, and relieve the moderator from embarrassment in arranging 
the order of business at each meeting. 

The rules governing the conduct of deliberative assemblies are called " parliamentary 
rules." They are so called from their origin in the English Parliament. These rules, in pro- 
cess of time, as a whole have become very extensive, and, indeed, somewhat intricate. In 
conducting a town meeting, it would be impracticable to attempt to observe that nicety in 
regard to these rules which is adhered to in legislative assemblies. 

An important feature in parliamentary practice is, that the sense of the meeting is taken 
through the agency of a motion, made by some member and seconded by another. After a 
motion is thus made and seconded, the presiding officer proceeds promptly to state it to the 
meeting, thus : "Gentlemen, it is moved that" (stating the motion as made.) "Those in 
favor ot this motion will 6ay aye." " Those opposed will say, no." If the motion prevails, 
he shonld announce the vote thus: "It is carried in the affirmative," or, "The motion has 
prevailed." If the motion fails, then say, "The motion is lost." 

After the moderator has thus declared the vote it becomes the sense of the meeting, 
and win stand as such until rescinded or reconsidered by another motion made for that 
purpose. 

Where a vote is nearly equal, and it is difficult to determine the result, the moderator 
should not hastily declare the vote; but should say, "The ayes seem to have it," or, " The 
no;$ 6eem to have it." If no one interposes, he will declare the result as it seems to him. If 
any one wishes to interpose, deeming that it seems to the moderator differently from the fact, 
he should do so b y promptly calling for a division. This may be done by a " 6bow of hands," 
by rising, or by literally dividing the house — that is, those voting in the affirmative all going 
to one side of the room, and those of the negative going to the other. After the vote haa 
been declared by the presiding officer, it is too late to call for a division. 

It is a general rule that a motion to lay a proposition on the table, and a motion to adjourn 
is not open to debate. But otherwise with a motion to lay on the table for a time limited, 
or to adjourn to a day certain. 

The moderator should be prompt in putting motions. It ia no part of his duty to invite 
debate. 

Parliamentary rules, as existing by custom, may be modified by rules fixed by the as- 
sembly. 

(1) The provision requiring the town meeting to be called to order between nine and ten 
o'clock in the forenoon, would seem to be directory. Should there be a failure to call the 
town meeting to order within the time specified by law, it could no doubt be properly called 
to order at any time during the day, where all parties act in good faith. See Goodelly. 
Baker, 8 Cowen R„ 286. 

In Cook county the supervisor of the town is moderator of the town meeting by virtue of 
effice. 

(2) Form of Oath of Moderator of Town Meeting. 

"I do solemnly swear (or affirm, as the case may be,) that I will support 
the constitution of the United States, and the constitution of the State of 
Illinois, and that I will faithfully discharge the duties of the office of 
moderator at this town meeting, according to the best of my ability." 

T"ne netv constitution has prescribed the foregoing general form of Joath for all efoil 
officer*, where an rath is required, and declares that no other shall be required. Const., Art. 5, 
Sec. 25. It may be questioned whether the position of moderator is an office in contempla- 



214 TOWNSHIP ORGANIZATION. [DIV. IV. 



ceedh£ s 8 cf pr °" ^ec. ^- ^ e to ^ n clerk, last before elected or appointed, shall be 
the clerk of the town meeting, and shall keep faithful minutes of 
its proceedings; (1) in which he shall enter, at length, every 
order or direction, and all rules and regulations made by such 
meeting. (2) 

tion of law. He is styled an officer by the law, as will be observed ; and, further, it is the 
intention of the constitution that the above form of oath shall be used on all occasions of 
official calling. The position of moderator, although the term is of short duration, is one of 
responsibility. He is the sule judge and canvasser of votes at the town election, and as such 
is required to observe the provisions of the constitution of the state and of the United States 
in regard to the elective franchise, and the terms of the oath seem properly applied to him. 

The oatJi of moderator, it will be seen, may be administered by the town clerk or 
other proper officer. The statute has determined who are empowered to administer oaths, 
■whether oaths of office, or for other purposes. By tho Revised Statutes, Chap. 76, Sec. 3, it 
is enacted, "that all courts of the state, the judges, justices, notaries public and clerks of 
said courts, within their respective districts, circuits or counties, and the justices of the 
peace within their counties, shall. respectively have power to administer all oattis of office, 
and other oaths required to be taken by any person before enteriug upon the discharge of 
the duties of any office, appointment, place or business, or any other lawful occasion/' See 
Rev. Stat., Ch. 76, Sec. 3. 

What is therefore understood by " other proper officer," is any of the officers enumerated 
by the section of the statute here quoted. 

The clerk should make a record upon the minutes of the meeting, of the fact that the 
moderator was duly sworn before entering upon the duties of his office. 

Where, in pursuance of law, the oath of office is admiui.-tered to a town officer in open town 
meeting, in presence of the town clerk, the clerk's record of the fact is competent evidence 
of the administration of the oath. Bnggs v. Murdoch, 13 Pick. R.. 305. 

The neglect of the moderator or clerk to take the oath as prescribed, would not, it seems, 
vitiate the election of officers at town meeting. An oath irregularly administered, for exam- 
ple, upon a book other than the Holy Bible, the parties administering it, and taking it, sup- 
posing it a Bible, is a valid oath. People v. Cook, 4 Seld. R,, 67. 

(1) One who was formerly a town clerk, but is no longer in the cffice, cannot amend a 
town record made by him when town clerk ; but if he continue in office, be may amend the 
record of a previous term; the intervening election is held to be substantially a continuance 
ef the clerk in the same office. Hartntll v. Littleton, 13 Pick. R., 229. 

(2) Form of Minutes of Proceedings of Town Meetings. 

At the annual town meeting held in the town of , county of , 

and State of Illinois, at (state place of meeting,) on the day of , 

A.D. 18 — , the meeting was called to order by F. C, town clerk. N. S. 
was, on motion of Mr. C. H., duly chosen to preside as moderator, who 
being first duly sworn by A. S., Esq., a justice of the peace in said town, 
entered upon the duties of his office. 

The polls for the election of officers were opened, proclamation thereof 
being first made by the clerk. 

At twelve o'clock at noon, on motion of Mr. L. M., the meeting was 
adjourned and polls closed for one hour, till one P. M. 

At one o'clock P. M., meeting called to order by the moderator, and 
polls opened, pursuant to adjournment. 

The hour of two o'clock in the afternoon haying arrived, and the gen- 
eral business of the day being now in order, 

On motion of Mr. L. F., it was voted that the polls for the election of 
officers be kept open till six o'clock P. M. 

The following named persons were elected by yeas and nays, overseers 
of highways for the ensuing year, in the following road district, to-wit : 
(here give the names of persons and number of districts.) 

On motion of Mr. J. C, ordered that a pound for impounding animals 
be established and erected at (here state where,) within sixty days from 

this date, not to exceed in cost the sum of dollars, and that the same 

be erected and constructed under the direction of the pound master. 

Mr. W. B. presented the following resolution, which, on motion, waj 
adopted : 

Resolved, That, (set forth the resolution.) 



ART. V.j CONDUCTING TOWN MEETINGS. 215 

SBC. 4. If the town clerk be absent then such person as shall be Clerk ^ r0 tem - 
chosen for that purpose by the electors present shall act as clerk 
of the meeting. (1) 

Sec. 5. The moderator chosen by the electors to preside at the Moderator to reg- 
annual or special town meeting shall regulate the business and 
proceedings thereof, and shall decide all questions of order, and 
shall make public declaration of all votes passed. When any vote, 
so declared by him, shall, upon such declaration being questioned 
by one or more of the electors present, he shall made the vote Decision of que* 
certain by causing the voters to rise and be counted, or by divid- tlon8 ' 
ing off. 

Sec. 6. All questions upon motions made at town meetings shall J" c e id t e i J ns ' how 
be determined by the majority of the electors voting ; and the offi- 
cer presiding at such meeting shall ascertain and declare the result 
of the votes upon each question. 

Sec. 7. It shall not be lawful for the electors, at the annual town Order of busi 
meeting, to commence the transaction of any business, except that,™' 
which shall pertain to the organization of the meeting and the 
election of the officers of the town, until the hour of two o'clock 
in the afternoon ; at which hour, or as soon thereafter as the elec- General business 
tors present may determine, the general business of the day, which ^cTodTpfM.** 
the electors may lawfully transact at town meetings, shall com- 
mence, and be continued until such business shall be disposed of; 
upon the completion of which the moderator shall announce the 
miscellaneous business of the day to be closed ; after which an- 
nouncement no further business shall be transacted at that meet- 
ing, unless the electors shall, at the time of such announcement, as 
aforesaid, so order, except the election of officers, as aforesaid, or 
that which appertains thereto ; after which no question, already Reconsideration 
disposed of, shall be reconsidered, unless the motion for such recon- ?g 6 ?° tl0n ' 
sideration shall be sustained by a number of votes equal to a ma- 
jority of all the names entered on the poll list, at such meeting, 
up to the time such motion shall be made. 

Sec. 8. If any person shall conduct in a disorderly manner, at Disorderly con- 
any town meeting, and, after notice from the moderator, shall per- 
sist therein, the moderator may order him to withdraw from the 
meeting, and, on his refusal, may order a constable or other person 
to take him from the meeting, and confine him in some convenient 

On motion of Mr, S. J., ordered that the next annual town meeting he 
held at (set forth the place ordered.) 

(In like manner set forth each order or direction as they transpire ; after 
which, at the close, set forth the statement of the canvass of votes, as directed 
by section 22 of this article, post, p. 113.) 

On motion, meeting adjourned without day. 

F. C, Town Clerk. 
N. S., Moderator. 

It seems that the clerk's record of the proceedings of a town meeting will be considered 
sufficient evidfnre of the facts therein set forth, as transpiring at that meeting.— Briggs v. 
Murdock, 13 Pick. R., 305. 

(1) When it becomes necessary to choose a clerk pro tern., it is proper that he should be 
sworn, using the form of the oath of moderator, adapting it to tho case. 



216 



TOWNSHIP ORGANIZATION. 



[DIV. IV. 



Qualification of 
voters. 



Challenge of 
votsrs. 



place until the meeting shall adjourn; and the person so refusing 
to withdraw shall, for such offence, further forfeit a sum not exceed- 
ing ten dollars, for the use of the town. (1) 

Sec. 9. No person shall be a voter at any town meeting, unless 
he shall be qualified to vote at general elections, and has been for 
the last thirty days an actual resident of the town wherein he shall 
offer to vote. (2) 

Sec. 10. If any person offering to vote at any election or upon 
any question arising at such town meeting shall be challenged as an 
unqualified voter, the presiding officer shall proceed thereupon in 
like manaer as the judges at the general elections are required,, 
adapting the oath to the circumstances of the town meeting. (3) 



(1) The order of the moderator to take a person from the meeting, for disorderly conduct, 
need not be in writiDg, but may be given to the constable, or other person, verbally; but if 
it is desired to recover the forfeiture or penalty provided for, it will bean indepeadent matter, 
and must be prosecuted as in other cases of fines or penalties goiog to the town. Parsoits v. 
Brainarr 1 , 17 Wend. R. ; 522. 

(2) Voters at town meeting. — By F an act to prevent illegal voting, at elections,"' and 
" an act to provide for ascertaining the qualification of voters and to prevent illegal voting,'' 
the former approved Feb. 21, and the latter Feb. 22, 1861, it is provided that to constitute 
a voter at any election under the laws of'this state, except under charters for cities or incor- 
porated towns, the person must have rt-sided in the election district (or township) where the 
vote is offered, for the term of thirty days immediately preceding the election. See title 
Kkectio&b, L>i v. 1., ante, p. bt>. The new constitution affirms this provision, and makes turtle, 
provision in regard to qualification of voters. See ante, p. 201, note 1. 

A person went to reside in a certain county, on Sept. 22, and an election was held there 
on the 21st of October following. Held, that he had not resided there thirty days, so as to 
entitle him to a vote under the provision of law requiring a previous residence for such a 
length of time. Feople v. Holden, 28 Cal. R., 123. 

Remaining in a township with the intention of returning upon the accomplishment of some 
temporary purpose, is not sufficient to give a residence within t:je intention of the law. 
There must be a bona fide intention to make it a residence. State v. Minnick, 15 Iowa R , 
(7 Withrow) 123. 

The rules applicable to general elections in regaid to voters, conducting elections, and can- 
vassing votes, are for the most part applicable to the election of officers at town meeting. See 
title Elections, Div. I, 

(3) Clialienge of voters. — For proceedings by judges at general elections, ?ee title 
Elections Div. I. ante, sec. 67, p. 31, The oath required at general elec- 
tions, when adapted to the circumstances of the town meeting, under the acts of the legis- 
ture before referred to, will be as follows : 

Form of Oath to person challenged. 
You do solemnly swear (or affirm as the case may le) that you are a res- 
ident of this township, and that you have been an actual resident herein 
for the last thirty days : that you are a citizen of this state, and have re- 
sided herein one year preceding this town meeting ; (or that you was an 
inhabitant of this state on the first day of April, in the year of our Lord 
one thousand eight hundred and forty-eight ; ) that you are above the age 
of twenty-one years, and that you have not voted at this town meeting, 
so help you God. 

By the election laws of 1861, as will be seen, ant-e, p. 36, sec. 1, the person challenged is 
required, in addition to the foregoing oath to swear or affirm to his place of residence, spe- 
cifying the particular place and house in which he resides, and stating how long he has there 
resided, and his business or employment; and if he has not resided in such house for thirty 
days immediately preceding such election, he shall state where and in what house he has 
resided for the last thirty days, and in addition thereto he is required to produce two wit- 
nesses, both personally known to the judges of the election and resident in the precinct, dis- 
trict, or ward, to testify to the qualifications of the person challenged as a voter. The addi- 
tional oath of the person challenged may be in the following form, followed by appropriate 
interrogatories : 

Form of additional Oath to person challenged. 
You do solemnly swear, (or affirm.) that you willfully and truly answer 
all such questions as shall be put to you touching your place of residence, 
and qualifications as a voter at this election. 



ART. V.J CONDUCTING TOWN MEETINGS. 217 

Sec. 11. If any person, challenged as unqualified to voio at any Fa,se swearing, 
town meeting, shall be guilty of willful and corrupt false swearing 
or affirming, in taking the oath required in the preceding section, 
such person shall be deemed guilty of willful and corrupt perjury, Punishment, 
and punished accordingly. 

Sec. 12. Any person who shall vote or offer to vote in any town IH ^ al voting 
in which he does not reside, or who shall vote or offer to vote in 
more than one town, or w r ho shall vote or offer to vote more than 
once on the same day at any town meeting, or who is not a legal 
voter, he shall be guilty of a misdemeanor, and, on conviction 
thereof, shall be punished by a fine of not exceeding one hundred Punishment, 
dollars, or imprisoned not exceeding six months, or both by such 
fine and imprisonment. (1) 

Sec. 13. Town meetings shall be kept open from the time of Adjournment of 
opening in the morning until six o'clock in the afternoon, unless anTciotingoir 
the voters present may, by vote, adjourn one hour, from twelve j^ 8 - 

The moderator will then put the following questions : 

1st. In what town do you now reside ? 

2nd. In what place and house do you reside ? State the same par- 
ticularly. 

3rd. How long have you resided in said house, and what is your busi- 
ness or employment ? 

(If the answer shows that the person has not resided in such town for. 
thirty days immediately preceding the election or town meeting, he must 
state where and in what house he has resided for the last thirty days.) 

The two witnesses produced to prove tho residence of the person challenged are .required 
by law to take the following oath, which will be administered to each by the moderator*: 

Form of Oath of Witnesses produced to prove residence of person challenged. 
I do solemly swear, or affirm, (as the case may be,) that I am a resi- 
dent of this election district, and entitled to vote at this election, and that 
I have been a resident of this election district for one year last past, and 
that I am well acquainted with the voter whose vote is now offered, that 
he is an actual and bona fide resident of this election district, and that he 
has resided in this state for one year last past. 

In deciding who are voters at town meeting, two questions are to be determined : 
first, the persuu must be a voter at general elections ; second, he must also have been for the 
last thirty dajs a resident of the town in which he offers to vote. As to who are voters at 
general electi >ns, see note to section 1, article 4, ante, p. 95. 

In the absence of any express statute on the subject, it has been decided that a resident is 
a person coming into a place with intention to establish his domicil or permanent residence, 
and who, in consequence, actually remains th>~re. Time, however, is not so essential as tho 
intent executed by making or beginning an actual establishment, though it be abandoned in 
a longer or shorter period. JBouv. L. Diet., title Resident, 20 Johns., 211. 2 Scam. R., 
377. But our statute has provided, see title Ejection, ante, sec. 1, p. 36, ante, sec. 9a, p. 
38, that to constitute residence under the constitution and election laws of the state, a per- 
manent abode is necessary, and residence in the town or district for thirty days immediately 
preceding the election. 

(1) In an indictment for illegal voting at a town meeting, it is sufficient to allege 
that such meeting was duly holden, without stating how or by what authoriiy it was called. 
And when an indictment alleged that a town meeting was duly holden for the election of 
certain officers, and that the inhabitants were also called on to give in their votes for mem- 
ber of Congress; Held, a sufficient allegation that the meeting was called for the purpose 
of votii g for member of Congress. Sta e v. Marshall, 45 New Hamp. R., 281. 

A. guilty intent is a necessary element in the offence created by the statute, declaring 
that h person voting twice at the samn election, 6hall be declared guilty of a misdemeanor, 
and th refore a person who votes a second time, when so intoxicated that he has no knowl- 
edge that he has voted before, is not guilty under the statute. People v. Harris, 29 Cal. 
R., 678. 



officers, 
By ballot, 



218 TOWNSHIP ORGANIZATION. [DIV. IV. 

18fJ1 - till one o'clock ; and at all town meetings and elections of town 

officers the polls may be closed at four o'clock in the afternoon, but 
may be kept open until a later hour, in the discretion of the 
electors. (1) 

Minutes to be Sec. 14. The minutes of the proceedings of every town meeting, 

subscribed by the clerk of said meeting, and by the presiding offi- 
cer, shall be filed in the office of the town clerk, within two days 
after such town meeting. 

Proclamation. Sec. 15. Before the electors shall proceed to el ict any town officer, 

proclamation shall be made of the opening of the polls, by the town 
clerk ) and proclamation shall, in like manner, be made of each 
adjournment, and of the opening and closing of the polls until 
the election is ended. (2) 

Mode of choosing Sec. 16. The supervisor, town clerk, assessor, overseer of the 
poor, collector, commissioners of highways, constables, and justices 
of the peace, shall be chosen by ballot. All other officers shall 
be chosen, either by ballot, by yeas and nays, or by dividing the 

The preparation electors, as the electors of the meeting may determine. When 

of ballots. the electors vote by ballot all the officers voted for shall be named 

in one ballot; which shall contain written or printed, or partly 
written and partly printed, the names of the persons voted for, and 
the officers to which such persons are intended to be chosen, and 
shall be delivered to the presiding officer, so folded as to conceal 
the contents. (3) 

(1) It will be observed that the polls of election, only, can be closed at four o'clock ; the 
town meeting cannot be adjourned until six o'clock. The closing of the polls ia in the dis- 
cretion of the electors, by a vote, as upon any other question. 

(2) Form of Proclamation of opening Polls at Town Meeting. 
Hear ye ; hear ye : hear ye : the polls for the election of officers at thia 
meeting are now opened, pursuant to law. 

If the voters present shall vote to adjourn from twelve to one o'clock, proclamation must 
be made of such adjournment and of the opening again after such adjournment. 

Form of Proclamation of adjournment of Polls. 
Hear ye : hear ye : hear ye : the polls for the election of officers at thia 
meeting will stand adjourned till one o'clock this afternoon. 

Form of opening Polls after adjournment 
Hear ye : hear ye : hear ye : the polls for the election of officers at this 
meeting are now opened pursuant to adjournment. 

Note. — Although the law does not seem to require it, yet it would be well for the clerk to 
make proclamation of the closing of the polls thirty minutes before closing the same, as is 
required by law at general and other elections. The foregoing forms given can be varied to 
suit the occasion of giving notice of the closing of the polls. 

(3 ) If a ballot contains the names of more persons for any office, than there 
are candidates to be elected, such part of the ticket cannot be counted for either of them, 
but must be rejected. See title Elections, ante, sec. 13, p. 33. People v. Lownis, 8 Weud., 
It., 396. But it cannot be rejected as to other candidates regularly named on the ballot. 
Carpenter v. Ely, 4 Wis. K., 420. 

But no vote should be rejected for want of form, if it can be determined therefrom, satis- 
factorily, the persons voted for, and the office which the voter intended to fill. See title 
Elections, Div. I, ante, sec. 13, p. 33. 

A single piece of paper cast as a ballot, and containing the name of a candidate mr ~ than 
once should be counted as one vote, and not rejected as an illegal ballot. 1'eople v. Holier^ 
28 Cal. R., 123. 



ART. V.] CONDUCTING TOWN MEETINGS. 219 

Sec. 17. When the election is by ballot a poll list shall be kept Po,llikt - 
by the clerk of the meeting, on which shall be entered the name 
of each person whose vote shall be received. (1) 

Sec. 18. When the election is by ballot the presiding officer shall Deposit of ballots 
deposit the ballots iu-the box provided for that purpose. 

Sec. 19. If any moderator shall at any town meeting, before the Moderator not to 
poll is closed, read or examine, or permit any person to read or J2Siot. r exp08<) 
examine the names on any voter's ballot, with the view of ascertain- 
ing any candidate voted for by him, such moderator shall forfeit, to 
the use of the town, the sum of twenty-five dollars. 

Sec. 20. At the close of every election by ballot the presiding CanvosBingof the 
officer shall proceed publicly to canvass the votes ; which canvass, 
when commenced, shall be continued without adjournment or inter- 
ruption until the same be completed. 

Sec. 21. The canvass shall be conducted by taking a ballot at a Can J M ;»Jo w 
time from the ballot box and continue counting until the number 
of ballots are equal to the number of names on the poll list, and if 
there shall be any left in the box they shall be immediately des- 
troyed; and such persons as shall have the greatest number of 
votes shall be declared to be elected. If on opening the ballots 
two or more ballots shall be found to be so folded that it shall be 
apparent that the same person voted them, the presiding officer 
shall destroy such votes immediately. (2) 

Sec. 22. The canvass being completed, a statement of the result statement of r.> 
shall be entered at length, by the clerk of the meeting, in the min- b y c ie°rk! en e " 
utes of its proceedings, to be kept by him, as before required, 
which shall be publicly read by him to the meeting ; and such Publicly read. 
reading shall be deemed notice of the result of the election to every 
person whose name shall be entered on the poll list as a voter. (3) 

(1) Form of Poll List kept at Town Meeting. 

Poll list kept by the clerk, at town meeting held at in the town 

of , and county of , on the — day of , A. D. 18 — , on which 

is entered the name of each person voting at said town meeting. 



No. 


Names. 


No. 


Names. 


1 
2 


J. H. 
E. H. 


3 
4 


S. C. 
J. W. 



Total number of ballots, 4. 

J. J., Moderator. 
Attest, J. S., Town Clerk. 

(2) The ballots cast at an election are better evidence than the tally list made from 
them, of the number of votes. People v. Holden, 28 Cal. R., 123. 

The moderator, as inspector of election, is a ministerial officer, and his action can be re- 
viewed by the courts. People v. Pease, 27 N. Y. R., (13 Smith) 45. 

(3) Form of Statement of result of Canvass to he entered by the Clerk in 
Minutes of Meeting. 
The following is a statement of the result of the canvass of votes by 
ballot, for the election of officers at the annual town meeting in the town 

8 



220 TOWNSHIP ORGANIZATION. [DIV. IV. 

Tje^vote. i n case i wo or more persons stall have an equal number of votes 

for the same office the question, of which shall be entitled to the 
office, shall be decided between such persons, by lot, under the 

Notice. direction of the town clerk ; but he shall give each party notice of 

the time and place of drawing lots. (1) 

of , in the county of , State of Illinois, A. D. 18 — , as publicly 

canvassed by the presiding officer at said meeting : 

A. P. had one hundred votes for supervisor.. 

H. G. had seventy -five votes for supervisor. 

0- H. had one hundred votes for town clerk. 

(And so on, giving a statement of the votes cast for each person.} 

Where the name of a voter appears on the poll list of persons voting at a township election* 
and the minutes of the meeting were publicly read to the meeting, and the name of a voter 
was read out to the meeting as having been elected overseer of highways : Held, that he had 
all the notice of his election to whi h the law entitles him. Too much strictness on 6uch sub- 
jects as proceedings at town meetings would be fatal to the system of township organization; 
hence the courts are iuclined to be liberal in reviewing such proceedings. Yocum v. Town, 
of Waynesville, 39 111. R., 220. 

Where no certificate or other formal mode of making known to a person his election to a 
public office is required by law, the result of the election as ascertained and announced at 
the close thereof, is conclusive upon the election of officers, and cannot afterwards be recon- 
sidered or varied. State v. Warren, 1 Houston (Del.) R., 39. 

(1) Form of Notice by Town Clerk, of drawing lots in case of a Tie Vote 

between Candidates. 
To J. S. : 

Sir — You having received at the late town meeting an equal number of 

votes with D. K., for the office of supervisor of the town of , are hereby 

notified that the question of which of you is entitled to said office, will be 

decided by lot at my office in said town, on the day of , A. D. 18 — , 

at the hour of ten o'clock in the forenoon; that should you fail to appear 
at such time and place, the matter will be decided in your absence. 

Dated at , this day of , A. D. 18—. 

J. B., Town Clerk. 

Note. — Where the candidates are present at the announcement of the tie vote, at town 
meeting, verbal notice may be given them by the clerk, informally, and the drawing lots take 
place at once. No method of proceeding is prescribed in deciding the question between can- 
didates, but the drawing is under the direction of the town clerk; he will therefore direct the 
manner in which to proceed. It would be well for him to adopt the course prescribed in 
deciding the term of office of commissioners at the first election. See Art. 18. sees. 8 and 9, 
post. He may prepare two pieces of paper, on one may be written the title or name of the 
office in question, leaving the other blank; then fold each alike and place them in a box, 
from which let the candidates draw; the person drawing the paper containing the name of 
the office, to be entitled to it, and declared duly elected. In case the candidates, or either of 
them, fail to attend upon being notified, then the clerk can select some qualified elector to 
draw for the absent candidate. 

It is proper that some record or memorandum should be made, by the town clerk, of the 
maaner of disposing of the question of a tie vote between candidates, that the records of the 
town may always show who are elected officers. It would therefore be well for the clerk to 
add a memorandum at the close of the minutes of proceedings of the meeting, after the sig- 
natures of himself and the presiding officer, in the following form : 

Form of Memorandum of Decision of Tie Tote between Candidates. 

At the annual town meeting in the town of , in the year 18 — , A. B. 

and C. D. having had an equal number of votes for the office of , the 

question of which should be entitled to said office was, on the day 

of , 18 — , duly decided between them by lot, and it was decided that 

the said A. B. should be entitled to said office. 

E. F., Town Clerk. 



ART. VI.] TOWN OFFICERS. 221 

Sec. 23. The clerk of every town meeting, within ten days there- Notta to person 
after, shall transmit to each person elected to any town office, whos« 
name shall not have been entered on the poll list as a voter, a 
notice of his election. (1) 

Sec. 24. The town clerk shall file in the office of the clerk of the lm of townotn. 
county court a list of the names of all town officers, elected at the W i t h county 
annual town meeting, within twenty days after such election shall gg*-. 
be held. 



ARTICLE SIXTH. 
OF QUALIFICATION AND TENURE OF OFFICE. 

Sec. 1. No person shall be eligible to any town office, unless lie Eligibility to 
shall have been one year a resident of such town. (2) 

Sec. 2. Every person cliosen or appointed to the office of super- Oath of office 
visor, town clerk, assessor, overseer of the poor, commissioner of l861 * 
highways, or collector, before he enters upon the duties of his 
office, and within ten days after he shall be notified of his election 
or appointment, shall take and subscribe before some justice of Before justice ot 
the peace, such oath or affirmation of office as is prescribed by peace ' 
law. (3) 

(1) Form of Notice by Town Clerk to any person elected to any Town Office, 
whose name is not on the Poll List. 

To G. N., Esq., of the town of , in the county of : 

You are hereby notified that at the annual town meeting (or special, as 

the case may be,) held in said town, at , on the day of , A. D. 

18 — , you were duly elected to the office of supervisor. 

Given under my hand at , this day of , A. D. 18 — , 

W. N., Town Clerk. 

(2) Town officers must be iriliabitants of the town in which they are chosen, and 
they ceuse to be officers when they cease to be inhabitants. Bane v. Greenwich, 1 Pick. 
K., 129. 

No person is eligible to a town office, as that of constable, which is considered a town 
office, unless he shall have been a resident of the town for one year next preceding th« time 
of his election. Where L. in the year 1860 was a resident of the town of Cicero; in 1861 
removed his family to the city of Chicago, adjoining the town ; in the same year entered the 
army, leaving his family in Chicago; in 1864 had a farm and lived in Missouri; in March, 
1S66, returned to Cicero, and in November was chos-n a constable of the town. H>ld, that 
his residence could only be counted from March preceding the election, therefore he could 
not hold the office legally. Laimbeer v. The People ex rel., 48 111. R., 490. 

The right of an officer cannot be determined by an action of replevin of its appurten- 
ances. Desmond v. McCarthy, 17 Iowa R., 525. 

Aud an officer de facto is entitled to the possession of his office dming the proceedings to 
oust him from it. Leach v. Cassidy, 23 Ind. R., 449. 

(3) The term "notified," as used in the law, would seem to import a formal notice, and 
not mere knowledge on the part of the person notified. I'oiwine's Appeal, 51 Conn. R., 387. 

Form of Oath to be taken and subscribed by Town Officer. 

State of Illinois, 

County. 

I, A. B., do solemnly swear (or affirm, as the case may be,) that I will 
support the constitution of the United States, and the constitution of the 
State of Illinois, and that I will faithfully discharge the duties of the 



222 TOWNSHIP ORGANIZATION. [DIV. IV. 

Oath to be filed. g EC> 3 g ucn p erson ghai^ w ithin eight days thereafter, cause 
such certificate to be filed in the office of town clerk. 

oato^are? sa?^ e ^ EC ' ^' ^ an J P erson caoseri or appointed to either or any of the 
serve, town offices above enumerated shall neglect to take and subscribe 

such oath and cause the certificate thereof to be filed, as above re- 
, quired, such neglect shall be deemed a refusal to serve. 

Notice of accept- Sec. 5. Every person chosen or appointed to the office of over- 
seer of highways or pound master, before he enter on the duties of 
his office, and within ten days after he shall have been notified of 
his election or appointment, shall cause to be filed in the office of 
town clerk a notice, signifying his acceptance of such office. A 
Effect of neglect. ne gi ec t to cause such notice to be filed shall be a refusal to 

serve. (1) 
Collector's bond. ^ EC ^ Every person chosen or appointed to the office of collec- 
tor, before he enters upon the duties of his office, and within eight 
days after he receives notice of the amount of taxes to be collected 
by him, shall execute to the supervisor of the town, and his suc- 
cessor in office, and lodge with him a bond, with one or more securi- 
ty ^uper?^™^ ^ es ' to ^ e a PP rove( l by sucn supervisor, in double the amount of 
such taxes, conditioned for the faithful execution of his duties as 
such collector. (2) 

office of (here insert the title of the office) according to the best of my 
ability. A. B. 

Taken and subscribed before me this day of , A. D. 18 — . 

C. D., Town Clerk. 

The foregoing is the general form of official oath prescribed by the constitution of 1870. 
Const., Art. 5, Sec. 25. 

The oath of office of all town officers may be administered by the town clerk. See Art. 9, 
Sec. 1, post, p. 

Supervisors are required (See Art, 14. Sec. 4,) to lay before the board of supervisors at their 
first meeting after the annual town election, certificates of i heir election; each supervisor 
will, therefore, after his qualification, be entitled to a certificate of his election, which should 
be issued by the town clerk, and may be in the following form : 

Form of Supervisor's Certificate of Election. 

County, 

Town of 

I, J. G., town clerk of said town of , do hereby certify that at the 

annual town meeting in said town, on the day of , A. D., 18 — , 

W. H. was duly elected supervisor of said town, (or, was on the day 

of , A. D. 18 — , duly appointed, etc..) that he has been duly qualified 

as such by taking the oath of office and giving bond as required by law. 

In witness whereof, I have hereunto set my hand this day of , 

A. D. 18—. J. G., Town Clerk. 

(1) Form of Notice of Acceptance of Overseer of Highways or Found Master, 
To S. L , town clerk of the town of : 

Sir — Having been elected (or appointed) overseer of highways for dis- 
trict No. — , in said town (or pound master for said town, as the case may be) 

■ on the day of , A. D. 18 — , I hereby notify you that I accept 

the office. 

Witness my hand this day of , A. D. 18. C. E. 

(2) Form of Collector's Bond. 

Know all men by these presents, that we, W. J., of the town of , 

in the county of , in the State of Illinois, as principal, and J. W. and 



ART. VI.] TOWN OFFICERS. 223 

SBC. 7. The supervisor shall, within six days thereafter, file such Bond to be filed 
bond, with his approval indorsed thereon, in the office of the re- aud recorded - 
corder, who shall make an entry thereof in a book to be provided 
for the purpose, in the same manner in which judgments are re- 
corded ; and every such bond shall be a lien on all the real estate, snail be a Hen, 
severally, of such collector, within the county at the time of the on property - 
filing thereof, and shall continue to be such lien until its conditions, 

D. F., of the said county and state, as sureties, are held and firmly bound 

unto S. R., supervisor of said town of , and to his successor in office, 

in the penal sum of (double the amount of taxes,) for the payment of which, 
well and truly to be made, we bind ourselves, our heirs, or executors and 
administrators, firmly by these presents. Sealed with our seals, and 
dated this day of , A. D. 18—. 

The condition of the above obligation is such, that, whereas, the above 
bounden W. J. has been elected (or appointed) collector for the said town 

of for the current year, and has accepted the office, and is about 

taking upon himself the discharge of his duties. 

Now, therefore, if the said W. J. shall, as such collector, faithfully col- 
lect, account for, and pay over all taxes which he should be legally re- 
quired to collect, and also shall with diligence and fidelity execute and 
discharge all his duties as such collector, then the above obligation to be 
void, otherwise to remain in full force and effect. 

W. J., [seal." 
J. W., [seal." 
D. F., [seal/ 

Form of Supervisor's Approval to be endorsed upon Collector's Bond. 
I hereby approve the within bond. 

"Witness my hand this day of , A. D. 18 — . 

S. R., 
Supervisor of the Town of . 

Inability of Collectors and Sureties. — It has been held in the state of New York, 
under a like provision of law, that the successor of a superviaer who has taken a collector's 
bond under the statute, may sue upon it in his own name. Jansan v. Ostrander, 1 Cowen 
R., 670. 

Although the proceedings of a town are very irregular and informal, at a meeting where 
assessor, treasurer and collector of taxes are elected, and taxes voted to be assessed, yet the 
collector is legally bound to pay over to the treasurer de facto all taxes voluntarily paid to 
him by the tax payer. Trtscott v. Moan, 50 Maine R., 347. 

The neglect of the proper authorities to compel the collector to promptly account for moneys 
collected, will not have the effect to release the sureties on his bond. Headfeld v. Sharer, 
50 Maine R., 36. 

Where a person was collector of taxes for two successive years, and at the end of the 
second year proved to be a defaulter, he had a right to appropriate payments made by him 
to the town either year, at the lime he made each payment ; if he failed so to appropriate 
them, the town might appropriate them as they desired ; and if no appropriation was mado 
by either, the law would appropriate such payment to the oldest debts, although the whole 
deficit is thereby made to fall on the second year. When the sureties of such collector on 
his official bond are not the same for the second year as the first, in a suit on one of the 
bonds for an alleged default, it is for the defendant to Bhow what part of the deficit belonged 
to each year. Eeadfield v. Shaver, 50 Maine R., 36. 

A collector's bond, dated August 15, 1854, and reciting that he was "chosen collector of 
taxes for the year ensuing," it appearing that he was chosen in 1854, his tax bills beariDg 
date that year, and that he ccllected that year's taxes, will be deemed to have reference to 
the municipal year 1854. Trtscott v. Moan. 50 Maine R., 347. 

The sureties on a tax collector's bond are bound, although the collector never took the 
oath of office, if in fact he acted as collector. Lyndon v. Miller, 36 Vt. R., 329. 

Held in Calitornia that taxes collected by a tax collector can be recovered from him in a 
single action, in the name of the people, although a part of them are due to the state, and a 
part to the county. People v. Love, 25 Cal. R., 520. 

To maintain an action against a collector for money collected by him and not paid over at 
the time required, no previous demand of him is necessary. Wentworth v. Gov, 45 N. II. 
R., 160. 



224 



TOWN-SHIP ORGANIZATION. 



[DIV. IV. 



Limitation of ac- 
tions on. 

1861. 



Collector's bond, 
when made to 
county clerk. 

1857. 

Constable's oath 
of office. 
1861. 



Constable bond. 



Approval. 



Condition.) 
1861. 



together with all costs and charges which may accrue by the prose- 
cution thereof, shall be fully satisfied ; and all actions against the 
sureties on any collector's bond shall be commenced within two 
years from the date of the execution thereof, and not afterwards : 
Provided, That actions upon existing bonds shall be commenced 
within six months from the date of the passage of this act and not 
afterwards. (1) 

Sec. 8. In auy town in which there shall be no town supervisor, 
the collector of the town may make his official bond to the clerk 
of the county court of the county in which said town may be 
situated. 

Sec. 9. Every person chosen or appointed to the office of consta- 
ble, before he enters upon the duties of his office, and within eight 
days after he shall be notified of his election or appointment, shall 
take and subscribe, before some justice of the peace of the county, 
the oath of office prescribed by law, and shall execute, in the pres- 
ence of the supervisor or town clerk of the town, with one or more 
sureties, to be approved of by such supervisor or town clerk, an 
instrument, in writing, [in] which such constable and his sureties 
shall jointly and severally agree to pay to each and every person 
who may be entitled thereto, all such sums of money as the said 
constable may become liable to pay on account of any executions 
which shall be delivered to him for collection by virtue of his office, 
and all such damages as each and every person may sustain by 
reason of any malfeasance, misfeasance or nonperformance of dutv 
on the part of said constable. (2) * 



(1) Ifo recovery can be had on a town collector's bond until after a warrant bas been 
issued to the sheriff requiring the delinquent sum to be levied on the property of the col- 
lector. Marls v. Sutler, 24 111. B., 567. See title Assessment and Collection, Sec. 75, 
post, 

Section 7 of this article, making a town collector's bond a lien upon all of his real estate, does 
not repeal the homestead exemption act eo far as his bond is concerned. A judgment ren- 
dered against a town collector upon his official bond, is like any other judgment, and creates no 
lien which can be enforced against his homestead, except in the mode pointed out by statute. 
The homestead right is protected against all liens and sales, and against all modes of convey- 
ance, whether by deed absolute or by mortgage, unless released or disposed of in the mode 
pointed out in the homestead act. When the value of the homestead exceeds $1,000, on pay- 
ing that to the owner, it may be sold under an execution ; and in such a contingency a judg- 
ment, whether upon the official bond of a collector, or otherwise, may be enforced, but it 
does not create a lien against the homestead of the debtor. Hume el al. v. Gossdt, 4-3 111. 
K., 297. 

(2) The oath of office of constable will be the same as that of other town officers, being 
the general form prescribed by the new constitution. Const., Art. 5, Sec. 25. See note, 
ante, p. 221 

Form of Instrument to be executed by Constable and Sureties for Performance 

of Duties. 

Whereas, the undersigned F. M. was, on the day of , A. D. 

18 — , duly elected [or appointed) a constable for the town of , in thp 

county of and state of Illinois, and has accepted of said office and if 

about to enter upon the performance of the duties thereof; 

Now therefore, know all men by these presents, that we, the said F. 
M. as principal, and S. E. and S. C. as his sureties, jointly and severally 
agree to pay to each and every person who may be entitled therevo, al. 
such sums of money as the said constable may become liable to pay on 
account of any executions which shall be delivered to him for collection 
* Repealed. See Haines' New Treatise, p. 730. 



ART. VI.] TOWN OFFICERS. 225 

Sec. 10. The supervisor or town clerk snail, if approved, indorse App™™ 1 t0 be 
such approval on such instrument, which shall be his approval of 
the sureties therein named, and then shall cause the same to be 
filed in the office of the town clerk ; and a copy of such instrument, Bond to be filed, 
certified by the town clerk, shall be presumptive evidence in all Copy evidence# 
courts of the execution thereof by such constable and his sureties. 

Sec. 11. All actions against a constable or his sureties upon such Limitation of ao- 
instrument shall be prosecuted within two years after the expiration 8tabL"s P bond. U * 
of the term for which the constable named therein shall have been 186L 
elected or appointed. 

Sec. 12. If any person chosen or appointed to the office of col- Neglect of col- 
lector or constable, shall not give such security and take such oath {J^JJ gerve? 8tar 
as is required above, within the time limited for that purpose, such 
neglect shall be deemed a refusal to serve. 

Sec. 13. If any person chosen or appointed to the office of super- "Forfeiture for ro 

it • • <» -i • i r> fusal to serve. 

visor, town clerk, assessor, commissioner of highways, or overseer oi 
the poor, shall refuse to serve > he shall forfeit to the town the sum 
of twenty-five dollars. (1) 

Sec. 14. If any person chosen or appointed to the office of over- sarte.' 
seer of highways or pound master shall refuse to serve, he shall 
forfeit to the town ten dollars. 

Sec. 15. If any town officer, who is required by law to take the intrusion intc 
oath of office, shall enter upon the duties of his office before he 
shall have taken such oath, he shall forfeit to the town the sum of penaitv. 
fifty dollars. 

by virjtue of his office, and all such damages as each and every person 
may sustain by reason of any malfeasance, misfeasance, or non-perform- 
ance of duty on the part of said constable. 
Executed in the presence of 
J. W. S., 

Supervisor of the town of F. M., [seal. 

S. E., [seal. 
S. C, [seal.] 

Form of Supervisor 's (or town clerk) Approval to be endorsed upon Instrument 
of Constable and Sureties. 
I hereby approve the within instrument and the sureties therein named. 

Witness my hand this day of , A. D. 18 — . 

J. W. S., 
Supervisor of .the town of . 

No particular form for a constable's bond seems necessary ; it will be sufficient 
if it contain the substance of the statute. It may be in the form of an agreement or in 
that of a bond, and unnecessary recitals will not vitiate it, hut will be mere surplusage. 
Neither the constable ncr his sureties can object that it is not under seal, nor that the 
sureties had not been approved by the town clerk or supervisor. Slcellinger v. Tandes, 12 
Wend. R., 306. 

(1) A person who has been chosen or appointed to a town office, and neglects or refuses 
to eerve, whereby he incurs the penalty imposed by law, he can [not be again chosen or 
appointed to such office, or made liable to a second penalty for the second refusal to act. 
Haywood v. Wheeler, 11 Johns. R., 432. 

It is held that an action for the penalty here imposed will not lie except where the town 
proceed to a new election. That merely neglecting to file notice of the acceptance with the 
town clerk is not sufficient; the object of the law being to enforce the performance of tha 
duties, and if the town proceed to a new election, then to exact the penalty. Winnegar v 
llae, 1 Co wen R.. 258. 



226 TOWNSHIP ORGANIZATION. [DIV. IV. 

Term of office. g EC# ig # Town officers, except justices of the peace and consta- 
bles, shall hold their office for one year and until others are chosen 
or appointed in their places and are qualified. The justices of the 
peace and constables shall hold their offices for four years or until 
others are chosen and qualified. 
SSdbSStaaS ^EC. **■ Whenever the term of any supervisor, town clerk, 
papers. commissioner of highways, or overseer of the poor, shall expire, 

and other persons shall be elected or appointed to that office, it shall 
be the duty of such successor or successors, immediately after he or 
they shall have entered on the duties of the office, to demand of 
his or their predecessor all the books or papers under his or their 
control, belonging to such office. 
Demand upon Sec. 18. Whenever either of the officers above named shall 
charge of^ooks. resign or the office become vacant, in any way, and another person 
shall be elected or appointed in his stead, the person so elected or 
appointed shall make such demand of his predecessor [or] of any 
person having charge of such books and papers. 
Delivery of re- Sec. 19. It shall be the duty of every person, so going out of 
pap d er'8 b o°n oath? d omce j whenever thereto required, pursuant to the foregoing provi- 
sions, to deliver, upon oath, all the records, books and papers in his 
possession or in his control, belonging to the office held by him ; 
which oath may be administered by the officer to whom such 
Pay oyer money delivery shall be made. It shall also be the duty of every super- 

to successor. • ^ .. i? it. v l. J !l Cii. 

visor, commissioner or the highways, and overseer of the poor, so 
going out of office, at the same time to pay over to such successor 
the balance of moneys remaining in his hands, as ascertained by 
the auditors of town accounts. (1) 

The death of per- S E c. 20. Upon the death of any of the officers enumerated, the 
successor of such officer shall make such demand, as above pro- 
vided, of the executors or administrators of such deceased officer ; 

? uty ° f **f.™: and it shall be the duty of such executors or administrators to 

tors or adminia- • - •* .,. 

tratore. deliver, upon the like oath, ail records, books and papers in their 

possession or under their control, belonging to the office held by 
their testator or intestate. 



(1) Form of oath to be administered to Supervisor and other town officers on 
going out of office. 
You do solemnly swear (or affirm) that you have delivered to A. B. 
{name of successor in office) all the records, books and papers in your pos- 
session or in your control, belonging to the office of supervisor for the 
town of , so help you God. 



ART. VII.] VACANCIES IX TOWN OFFICES. 227 



ARTICLE SEVENTH 

VACANCIES IN TOWN OFFICES AND THE MANNER OF FILLING 

THEM. 

Sec. 1. Whenever any town shall fail to elect the proper num- Vacancies iu 
ber of town officers, to which such town may be entitled by law, or towQO ce ' 
when any person elected to any town office shall fail to qualify as 
such, or whenever any vacancy shall happen in any town office, 
from death, resignation, removal from the town, or other cause, it 
shall be lawful for the justices of the peace of the town, together 
with the supervisor and town clerk, to fill the vacancy or vacancies 
occasioned or occurring in consequence of either or any of the 
causes above specified, by appointment, by warrant, under their Manner of filling 
hands and seals; and the persons so appointed shall hold their 
respective offices during the unexpired term of the persons in "Warrant of ap- 

l ill ^ • i t -i " i i pointment. 

whose stead they have been appointed and until others are chosen 1861. 
or appointed in their places, and shall have the same powers and 
be subject to the same duties and penalties as if they had been 
duly chosen by the electors. (1) 



(1) One appointed to an office by a person having no authority, and commissioned by a 
person having no authority, is an officer defacti. Mallett v. Uncle Sam, etc., 1 Nev. R., 188. 
Sawi/erx. Hayden, 1 Nev. R., 75. 

After the appointment of any person to a town office to fill a vacancy, the electors cannot 
hold a special town meeting and fill such vacancy by election; the person appointed wilL 
hold over until the expiration of the time for which his predecessor was elected. People v. 
Van Home, IS Wend. R., 515. 

Before the board can appoint, a vacancy must in fact exist. The vacancy cannot be created 
by the mere act of the board declaring that a vacancy exists. Opin. Att'y Gen"l Colyille, 
(Miun.) May 2, 1867. 

No authority exists to appoint a person to an office, such as town assessor, who is not a 
resident of the town. Opin. Att'y Geu'l Cole, (Minn.) vol. 1, 214. 

Form of Warrant of Appointment by Justices of the Peace, Supervisor and 
Town Clerk, to fill vacancy. 

To R. H., Esq., of the town of , in the county of , and state of 

Illinois, greeting : 

Whereas, at the annual meeting of said town, held on the day of 

April, A. D. 18 — , said town neglected to choose a (here insert the title of 
the office vacant) for the current year, (or as the case may be,) whereby said 
office has become vacant. 

Therefore, we reposing full confidence in yOur integrity and ability, 
have appointed and do hereby appoint you a (here insert the title of the 
office) for said town, to hold said office until some other person shall be 
chosen or appointed in your stead; and you will have the same powers, 
and be subject to the same duties and penalties as if you had been duly 
chosen by the electors of said town. 

In witness whereof, we have hereunto subscribed our names and affixed 
oir seals at , this = — day of , A. D. 18 — . 



J. P., Justice of the Peace. 
S. W., Justice of the Peace. 
J. C, Supervisor. 
W. G., Town Clerk. 



SEAL. 
SEAL. 
SEAL. 
SEAL." 



228 TOWNSHIP ORGANIZATION. [DIV. IT. 

Appointment to g EC 2. Whenever a vacancy shall occur, from any cause, in any 

nil vacancy in >1 ^ -i-ip ••'.' J 

appointing or either oi the offices enumerated in the foregoing section as corn- 
board, posing the board of appointment for the appointing of town officers, 
in case of vacancy, it shall be lawful for the remaining officers of 
such appointing board to fill any. vacancy or vacancies thus occur- 

Justices shall be • rr , . ° c • ■ .r rn <• • .• n .i_ 

elected. ing, except in cases or vacancy in the office ot justice oi the peace, 

186L which shall be filled only by election. 

fiTd™ 114 10 b6 ^ EC ' ^' ^ nen an y appointment shall be made, as provided in the 

two preceding sections, the officers making the same shall cause the 
poimment 1 ** warrant of appointment to be forthwith filed in the office of the 

town clerk, who shall forthwith give notice to each person 

appointed. 
Resignation. Sec. 4. The justices of the peace of the town may, for suf- 

a«ep C t? 8 maJ ficient cause shown to them, accept the resignation of any town 
1861. officer of their town ; and whenever they shall accept any such 

resignation, they shall forthwith give such notice thereof to the 

town clerk of the town : Provided. That in towns having more 

than two justices of the peace such resignation may be accepted 

by any two of them. (1) 

Form of notice by Town Clerk to one appointed to fill vacancy. 

To R. H., Esq., of the town of , in the county of , and state of 

Illinois : 

You here hereby notified that on the — day of , A. D. 18 — , J. P., 

S. W., J. C, and W, G., justices of the peace, supervisor and town clerk 
of said town, by their warrant of that date under their hands and seals, 
appointed you to the office of (here insert the title of the office) for said town, 
which warrant has been duly filed in my office. 

Given under my hand this — day of . A. D. 18 — . 

W. G., To\>n Clerk. 

(1) Form of Resignation of Tou-n Officer. 

To G. B. and G. F., Esqrs., Justices of the peace of the town of , 

in the county of , and state of Illinois : 

• By reason of {here state the cause of resignation) I hereby resign the office 
of commissioner of highways for said town, (or as the case may be) and 
respectfully ask that you may accept my resignation. 

J. B. 
Dated at , this — day of , A. D. 18—. 

"We, the undersigned, justices of the peace of the said town of , 

being satisfied of the sufficiency of the cause shown above, do accept of 
the resignation of the said J. B. 

Witness our hands this — day of , 18 — . 

■ *' I Justices of the Peace 

If the resignation of an officer be not accepted, he remains in office. JBouv. Law. Dict^ 
title Resignation, 4 Dev., N. C. R., 1. 

A.n office may be vacated by abandonment, or resigned by parol, and the existence of 
a vacancy in either case, will depend upon all the facts and circumstances attending the 
game. State v. Allen, 21 Ind. R., 516. 

Any voluntary act of an officer, which permanently disables him to perform the duties of 
his office, such as enlistment in the military service of the United States, will amount to a 
constructive resignation of his office by abandonment. State v. Allen, 21 Ind. R., 516. Bryan 
v. Caitell, 15 Iowa R., (7 With.) 53S. 

One who has been elected to an office cannot resign it until he has been qualified, and has 
entered into possession of it. Miller v. Board of Supervisors, 2-5 Cal. R., 93. 



ART. VUI.] OF SUPERVISOR. 229 



ARTICLE EIGHTH. 
OF SUPERVISOR AND HIS DUTIES. 

Sec. 1. The supervisor of each town shall receive and pay over Supervisor to 
all moneys raised therein for defraying town charges, except those j^neysf 
raised for the support of highways and bridges. Said supervisor To give ^d. 
shall give bond to the town, with one or more sureties, conditioned 1861 - 
for the faithful discharge of his duties in relation to the town 
revenue — such bond to be approved by the town clerk and filed in 
his office, with such approval indorsed thereon. (1) Whenever 
the town clerk shall ascertain that such bond has been forfeited he suit upon, 
shall institute suit, in the name and for the use of the inhabitants 
of the town, against such supervisor. 

Sec. 2. He shall prosecute, in the name of his town or otherwise, Supervisor to 
as maybe necessary, for all penalties of fifty dollars and under, penanii! f ° r 
given by law to such town, or for its use, and for which no other 
officer is specially directed to prosecute. And no person shall be 
disqualified from being a witness or juror in such suit by reason witness ami 
of his being an inhabitant of said town. (2) jurors. 

(1) Form of Supervisor 's Bond. 

Know all men by these presents, that we, J. Gr., of the town of , in 

the county of , and state of Illinois, as principal, and A. D., and J. 

F., of said county and state, as sureties, are held and firmly bound unto 

the said town of -, for the use of the inhabitants of said town, in the 

sum of [here insert such amount as the town clerk may think proper,) for the 
payment of which well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, and each of them, jointly, severally and 

firmly by these presents. Sealed with our seals, and dated this day 

of A. D. 18—. 

The condition of the above obligation is such, that whereas, the above 

bounden J. Gr. has been chosen supervisor of the said town of , for 

the current year. Now, therefore, if the said J. G-. shall faithfully dis- 
charge all the duties of his said office required of him by law, in relation 
to the town revenue, then the above obligation to be void and of no 
effect, otherwise to remain in full force and effect. 

J. G., [seal.] 
A. D., [seal.] 
J. F., [seal.] 

Form of Cleric's approval to be endorsed on Supervisor's bond. 

I approve the within bond, this — day of A. D. 18 — . 

W. M., Town Clerk. 

Township treasurers under the school law are held to be insurers of the funds coming 
to their possession, and nothing can relieve them from their obligation to safely keep and 
pay over such funds, but the act of God or of the public enemy. Thompson et al. v. Board 
of Trustees, etc., 30 111. R., 99. And such is doubtless the rule in regard to supervisor, as the 
custodian of the town funds. 

(2) A. supervisor of a town in discharging his duties as such, acts not in his natural, 
but his official capacity ; and is pro tanto a corporation. lie has capacity of suing and being 
sued so far as his trust is concerned. The right to sue is incident to his office, and passes to 
his successor. If, in a suit brought by or against a supervisor as such, he fails in his action, 
execution goes against him personally, and his remedy is against the town. So held in New 
York. Jansen v. Ostrandcr, 1 Cowen, R., 670. 

Special authority from the electors of a town is not necessary to enable the supervisor to 
defend a suit against the town, or to take an appeal tterein. Homer r. Town of Polk, 6 
Wis. R , 35 0. See Art. 12, Sec. 4, p. 131. 



230 



TOWNSHIP ORGANIZATION. 



[DIV. IV. 



Account of re- 
ceipts and ex- 
penditures. 



Account with 
the justices. 



Certificate to be 
eDtered. 



Attend meetings 
of the board. 



Accounts against 
the town. 



Copies of entries. 



Sec. 3. He shall keep a just and true account of the receipts and 
expenditures of all moneys which shall come into his hands, by 
virtue of his office, in a book to be provided for that purpose at 
the expense of the town; and said books to be delivered to his 
successors in office. (1) 

Sec. 4. On Tuesday preceding the annual town meeting he shall 
account with the justices of the peace and town clerk of the town, 
or a majority of them, for the disbursement of all moneys received 
by him in his official capacity. 

Sec. 5. At every such accounting the justices and town clerk, or 
a majority of them, shall enter a certificate in the supervisor's 
office book of accounts, showing the state of his accounts at the 
date of the certificate. (2) 

Sec. 6. The supervisor of each town shall attend the annual 
meeting of the board of supervisors of the county and at every 
adjourned or special meeting of said board of which he shall have 
notice. (3) 

Sec. 7. He shall receive all accounts which may be presented to 
him against the town, and shall lay them before the board of town 
auditors, at or before their annual meeting. 

Sec. 8. He shall lay before the board of supervisors such copies 
of entries concerning moneys to be raised in his town as shall be 
delivered to him by the town clerk. 



(1) Form of keeping Supervisor's Book. 

M. L., supervisor of the town of , in account with said town. 

Dr. Cb. 



DATE. 




DOLLS. 


CTS. 


DATE. 




DOLLS. 


CTS. 


18— 
Feb.l 


To am't ree'd of col- 
lector of the town. 


150 


50 


IS— 
Jan'y 1 

April 1 


By am't paid for su- 
pervisor's book... 

By am't paid Fred- 
erick Brooks, for 
services as town 


1 
1 


00 

00 









(2) Form of Certificate of Justices of the Peace and Town Clerk, to be 
entered in Supervisor's book upon examination of his Accounts. 

County,) 

Town of / SS * 

We the undersigned, the justices of the peace and town clerk of the said 
town of , do hereby certify that we have this day examined the fore- 
going account [the certificate being entered at the close of the account at every 
such accounting) of M. L., supervisor of said town, and that we find the 
same in all respects correct and true, and that there appears at this date 

to be a balance of dollars and cents in the hands of said 

supervisor. 

Witness our hands this 



day of March, A. D. 18—. 
W. D., \ 
H. L., ; 
F. B., Town clerk. 



Justices of the Peace. 



(3) In Cook county, under the new constitution, the town supervisors are not members 
of the county board. Const., Art. 10 Sec. 7. See post, note 3, p. 240 



ART. IX.] OF TOWN CLERK. 231 

Sec. 9. If any supervisor shall refuse or shall willfully neglect to Ne g loctofdut y- 
perform any of the duties of his office, contained in the preceding 
section, he shall forfeit to the town the sum of fifty dollars, and be Forfeiture 
disqualified to act as the supervisor of said town. 

Sec. 10. Assistant supervisors and supervisors of wards in cities Assistant super- 
shall have no powers or duties as town officers, but shall be mem- audduties.* 6 ™ 
bers of the board of supervisors of their respective counties, and 1861# 
shall have, possess and enjoy all the rights, powers and privileges 
of such members. 

Sec. 11. The supervisors of each town shall be ex-officio overseers 1867. 
of the poor in their respective towns. (1) 



ARTICLE 1SINTH. 
OF TOWN CLERK AND HIS DUTIES. 

Sec. 1. The town clerk of each town in this state shall have the Clerks have cua- 
custody of all records, books and papers of the town, and he shall tody of record8 « 
duly file all certificates of oaths and other papers required by law 
to be filed by law in his office. (2) and he shall have power to 
administer the oath of office to all town officers, and it is hereby 1867. 
made the duty of the town clerk to administer all necessary 
oaths which may be required in the transaction of any township 
business in the town where he may be clerk; Provided, That 
nothing herein shall be so construed as to deprive any other person 
from administering said oaths as heretofore. 

Sec. 2. He shall transcribe in the book of records of his town the Shall transcribe 
minutes of the proceedings of every town meeting held therein, mmutes * 
and he shall enter in his book every order or direction, and all 
rules and regulations by any such town meeting. (3) 

Sec. 3. He shall deliver to the supervisor, before the annual To deliver copies 

,- p ,i r j . r> ,i • r of entries of votes 

meeting or the board or supervisors or the county, in each year, f or raising 
certified copies of all entries of votes for raising money, made since moneT - 

(1) For general duties of overseers of the poor, and provisions of law concerning the 
poor. See title Paupebs, Div. IX., post, 

(2) It is competent for one chosen town clerk to make a record of his own election and 
qualification. Briggs v. Murdoch, 13 Pick. R., 305. 

When the town clerk files a paper in his office, he shoild make an (ntry thereof upon it, 
with the date of filing in the following form : 

Form of entry of filing paper by Town Clerk. 

Filed this day of , A. D. 18—. 

J. J., Town Clerk. 

(3) The by-laws or ordinances of a town, printed and pasted into the regular record book 
for containing the same, are admissible in evidence, as being duly recorded. Hubankt V. 
Town of Ashley, 36 111. R., 177. 



232 



TOWNSHIP ORGANIZATION. 



[div. IV. 



the last meeting of the board of supervisors, and recorded the 
same in the town book. (1) 

ef/nsSSs^d 8 Sec * 4 ' Tlie town clerk ' imme <liately after the election of justice 
constables. of the peace, or the qualifying of any constable, elected or ap- 
1861, pointed in their respective towns, shall return to the county clerk of 

their respective counties the names of such justices and constables, 
penalty for neg- S EC# 5. If any town clerk shall willfully omit to make such return, 
such omission is hereby declared to be a misdemeanor, and, on con- 
viction thereof, the person so offending shall be adjudged to pay a 
fine, not exceeding ten dollars. 

Sec. 6. Copies of all papers, duly filed in the office of the town 
clerk, and transcripts from the book of records, certified by him, 
shall be evidence in all courts, in like manner as if the originals 
were produced. (2) 



Clerk's certifi- 
cate to papers, 
evidence. 



ARTICLE TENTH. 
OF THE BOARD OF AUDITORS OF TOWN ACCOUNTS. 



Town auditors. 



Sec. 1. In each town the supervisor, town clerk and justices of 
the peace of the town shall constitute a board of auditors, to ex- 
Examination of amine the accounts of the overseers of the poor and the commis- 
sioners of highways for such town, for moneys received and dis- 
bursed by them. (3) 



accounts. 



(1) Form of Certificate of Town Clerk to accompany Book of Entries of 

Votes for raising Money, recorded in Town Book. 

County, -) 

Tovrnof . / 8S * 

I do hereby certify, that the foregoing are true copies of entries of votes 
for raising money made since the last meeting of the board of supervisors, 
and recorded in the town book. 

Witness my hand this day of , A. D. 18 — . 

W." L., Town Clerk of said Town. 

(2) Form of Certificate of Town Clerk to copies of Papers and Records. 
County, \ 

Town of . / 8S * 

I, J. M., town clerk of said town of , do hereby certify, that the 

foregoing {or within) is a true and correct copy of the original thereof on 
file in my oflice, {or is a true and correct transcript from the original 
book of records of said town, wherein is contained the entry or record of 
all such matters.) 

In witness whereof, I have hereunto set my hand and seal this day 

of , A. D. 18—. 

J. M., Town Clerk. [seal.] 

(3) When all the officers forming the board of town auditors have met, a ma- 
jority of them may decice upbn questions coming before them, and their certificate will 
be valid although the supervisor has refused to sign it. Onderdonlc v. Supervisor, 1 Hill R., 
195. 

The law Beems to contemplate that a fall board shall be present, to be able to proceed, and 
for this purpose provides for filling vacancies. Blackman et al. v. Town of Dunkirk, 19 Wis 
R.. 183. 

The auditors of town accounts, may be compelled by mandamus to audit the amount 



ART. X.] TOWN AUDITORS. 233 



Sec. 2. In case of the absence of any or either of said officers, Vacancy Ailed in 
or their failure to attend any meeting of the' board, those attend- 1861. 
ing may associate with them the collector or assessor of the town, 
or both, in place of any absentee or absentees, as the case may be, 
who shall act, for the time being, as members of such board. 

Sec. 3. The board of auditors of town accounts shall meet at the ^ m ° ° f f meetin ^ 
town clerk s office, for the purpose of examining and auditing the ditors. 
town accounts, semi-annually, in their respective towns, on the 
Tuesday next preceding the annual meeting of the board of super- 
visors, and on the Tuesday next preceding the annual [town] meet- 
ing, and such other times as the interests of the town may require. 

Sec. 4. The accounts so audited and those rejected, if any, shall eied with the 
be delivered, with the certificate of the auditors, or a majority of J^ 1 *: 
them, to the town clerk, to be by him kept on file, for the inspec- 
tion of any of the inhabitants of the town. They shall also be 
produced by the town clerk at the next annual meeting and shall 
be there read by him. (1) 

Sec. 5. The board of auditors, composed of the same officers then s . ha11 audit . 

n. , ,, , •ii i • • charges ana 

in omce, shall at the same time and place as stated in section two, claims 
[three] examine and audit all charges and claims against their 

allowed for damages by taking land for a highway, and to take such measures as the law has 
placed in their power to collect the money ; although the party may have a remedy by ac- 
tion against the town. Van Vleit ex rel, etc., v. Wilson et al., 17 Wis. R., 687. And they may 
be compelled by mandamus to perform any ministerial duty which the law imposes upon 
them. Carpenter ex rel., etc., v. Supervisori of Town of Beloit, 20 Wis. R., 79. 

(1) Form of Certificate of Town Auditors, to be delivered with Accounts 

Audited. 

County, "I 

Town of . / SS - 

We, the undersigned, composing the board of town auditors of said 
town, do hereby certify, that we have this day examined the accounts of 
S. C, overseer of the poor, and of W. S., J. T., and E. W., commissioners 
of highways for said town, presented by them to us, for moneys received 
and disbursed by them ; and that we have audited and allowed to the said 
S. C, the sum of dollars and cents for his services,and disburse- 
ments necessarily made by him up to this date, in the execution of 

his duties as overseer of the poor, and that we find a balance of 

dollars and cents to be due to him in said town. That we have 

audited and allowed to the said W. S., J. T., and E. W., tne sum of 

dollars and cents, each for their services and disbursements 

necessarily made by them up to this date, in the execution of their 
duties as commissioners of highways, and that we find a balance of 

dollars and cents, in the hands of their treasurer, and due 

to the town. 

Witness our hands this — dav of , A. D. 18 — . 

S. H., Supervisor. 
T. S., Town Clerk. 

•o' p*' I Justices of the Peace. 

It is held, Supervisors v. Ottawa, 12 111. R., 480, that the board of supervisors in such 
counties as have adopted township organization are required to provide for the support of the 
paupers of the county, and that there is no foundation for a distinction between county and 
town paupers. The section of this act, therefore, providing for the account of overseer of 
the poor, will not apply except in those counties where by special enactment the town 
support their own poor. 



234 



TOWNSHIP ORGANIZATION. 



[DIV. IV. 



by affidavit 
when required 
1861. 



Shall make cer- 
tificate of their 
doings. 



respective towns, and the compensation of all town officers, except 
supervisors, for county services. 

Sec. 6. The board of auditors may require accounts presented to 
be verified by affidavit, setting forth that the same is correct and 
just and is unpaid, or, if any part thereof has been paid, setting 
forth how much. (1) 

Sec. 7. The said board shall make a certificate, to be signed by a 
majority of said board, specifying the nature of the claim or de- 
mand, and to whom the amount is allowed, and shall cause said 
certificate to be delivered to the town clerk of said town, to be by 
him kept on file, for the inspection of any of the inhabitants of 
said town; and the aggregate amount shall be delivered to the 
supervisor, to be by him laid before the board of supervisors, at 
their annual meeting. The board of supervisors shall cause the 
amount of said charges to be levied upon the property of said 
town, and collected as other taxes are levied and collected. The 
claims and compensation audited and allowed shall be read to the 
ejectors at the next annual [town] meeting, as directed in section 
iour of this article. (2) 



Amount to be 
levied. 



To be read at 
town meeting. 



(1) Form of Bill against Town and Affidavit of Correctness. 

Town of 

To A. J., Dr. 
18 — . April 8. To services as supervisor, one day, out of town 
In attending to prosecution of suit in favor of said town against C. 

D., pending in tJae county circuit court, $1.50 

A. J. 
State of Illinois, ") 

County, / ss * 

A. J., being duly sworn, doth depose and say, that the foregoing (or 
annexed) bill for one dollar and fifty cents by him rendered against the 

town of , in said county, for services rendered as therein stated, is 

correct and just, and is unpaid. 

A.J. 
Subscribed and sworn to before me this ^ 

day of , A. D. 18—. I 

J. D., Justice of the Peace. ) 

Note. — Where any part of a bill has previously been allowed and paid, credit therefor 
should be given on the bill, and the fact stated in the affidavit. 

(2) Form of Certificate of Auditors allowing claims against a Town, tvith 
Nature of demand, and to whom the Amount is allowed. 

County, ") 

Town of , J SS - 

We, the undersigned, composing the board of town auditors of the said 

town of , do hereby certify that the following is the nature of the 

claims or demands against said town, presented to us this day to be 
audited, showing to whom the several amounts are allowed; 

To L. W., Esq., supervisor of the town of , in said county, 

for one day's service in road appeal case, as rendered by 
commissioners of highways, $1.50 

To C. S., for his damages allowed by commissioners of high- 
ways on road above mentioned, 25.00 
(Specifying particularly the nature of each claim or demand, and to whom 



ABT. X.] BOARD OF HEALTH. 235 

Sec. 8. The following shall be deemed town charges : Town charges. 

1st. The compensation of town officers, for services rendered 
their respective towns. 

2nd. Contingent expenses, necessarily incurred, for the use and 
benefit of the town. 

3rd. The moneys authorized to be raised by the vote of a town 
meeting, for any town purposes; and 

4th. Every sum directed by law to be raised for any town 
purposes. (1) 

Sec. 9. The moneys necessary to defray the town charges of each Town charges to 
town shall be levied on the taxable property in such town, in the be levie<1, 
manner prescribed in the act for raising revenue and other moneys 
for state and county purposes and expenses. 

BOARD OP HEALTH. 

Sec. 1. The supervisors, assessors and town clerk of every town- Laws 1865, p. 
ship shall constitute a board of health, and on the breaking out of 1°' e .' ' 

r ,. t ',•>', i • • ,.,°... Supervisor, as- 

any contagious disease in their township or immediate vicinity, sessot and town, 
they shall have power to make and enforce any rules and regula- ^lid of heaiSS? 
tion tending to check the spreading of such disease within the May make mica 
limits of such township as they may deem proper; and for this pur- and re s ulationa - 
pose they shall have power to shut up any house where any infected May shut up in- 
person may be, or remove such person to any pest house within fected bon8ee - 
the limits of said township, at the expense of said party so moved, 
if he be of sufficient ability to pay, otherwise at the expense of said 
town. (2) 

Sec. 2. The township clerk shall keep a full record of all the M » 
doings of said board, and report the same at the annual town £°J n r ^k *° 
meeting of such township, and said board shall be allowed for doings of board, 
their time spent in the performance of their said duties, the compensation o* 
same sum now allowed to supervisors, and the same, together with *>°ard. 

the amounts are allowed,) and that we have this day audited and allowed to 
the ahoye named persons the several sums as above stated. 
Witness our hands this day of , A. D. 18 — . 

H. W., Supervisor. 

S. H., Town Clerk. 



p* *' I Justices of the Peace. 



TJie certificate of town auditors is conclusive upon the board of supervisors ; it is 
held in New York that they are precluded from going behind it to inquire as to the merits 
of the particular items allowed, but are bound to act upon the amount audited without 
modification ; and that a certificate of town auditors purporting in the body of it to have 
been made by "the board of auditors of the town of N. H.,"-is sufficient, though the officers 
hare merely signed their names without adding their official titles, and that it need not 
appear upon the face of the certificate that the auditors met at the proper time and place. 
It will suffice, if in point of fact their meeting was regular in those respects. Onderdorik v. 
Queen's Co., 1 Hill R., 195. 

(1) The expense of building a town house for holding town meetings, and for other town 
purposes, is a town charge. Town of Beaver Dam t. Frings, 17 Wis. R., 379; Kemptonv. 
SUtton, 13 Mass. R., 271. 

(2) A. board of healtli has no power to taJce and occupy premises as a peat house 
without the owners consent. Boom v. City oj Utica, 2 Barb. R., 104. 



236 



TOWNSHIP ORGANIZATION. 



[DIV. 



IV. 



Compensation 
aud bills to be 
audited. 



Id. 

Act to be accept- 



all bills by them contracted, and all sums of money by them ex- 
pended, shall be audited by the board of auditors of such town, 
and be paid in the same manner as the town expenses are now by 
law paid. (1) 

Sec. 3. This act shall only be in operation in counties where 
the board of supervisors shall, by its resolution, accept the same. 



ARTICLE ELEVENTH. 
OF THE COMPENSATION OF TOWN OFFICERS. 

Sec. 1. The following town officers shall be entitled to compen- 
sation, at the following rates for each day necessarily devoted by 
them to the services of the town, in the duties of their respective 
offices. (2) 
Compensation of Sec. 2. The town clerk, supervisor, overseer of the poor and corn- 
town officers. . missioners of highways, shall receive for their services one dollar 
Supervisor.' and fifty cents per day, when attending to town business out of 
'•'■■': - ; l frvnrr, • — one dollar for town business in their town : Provided, That 

fees for the following 



poor. town ; 

Commissioners of the town clerk shall receive 

highways. 



Clerk's fees for 
services and, 
copies. 
1861. 



Assessor. 
1851. 



Pound master's 
fees. 



Town auditor's 

fees. 

1861. 



and not a per 
diem: For serving notices of election upon town officers, as 
required by law, twenty-five cents each • for filing any paper 
4 required by law to be filed in his office, ten cents each ; for posting 
up notices required bylaw, twenty-five cents each; for recording 
any order or instrument of writing, authorized by law, six cents 
for each one hundred words ; for copying any record in his office, 
and certifying to the same, six cents for every one hundred words, 
to be paid by the person applying for the same ; for copying by- 
laws for posting or publication, four cents each one hundred words, 
to be paid for by the town. The town assessor shall receive, for 
his services as assessor, one dollar and fifty cents per day. 

Sec. 3. The pound master shall be allowed the following fees for 
his services, to-wit : For taking into the pound and discharging 
therefrom, every horse, ass or mule, and all neat cattle, ten cents 
each ; for every sheep or lamb, three cents each ; and for every 
hog, large or small, five cents. 

Sec. 4. The officers composing the board of appointment, in case 
of vacancy, when they shall meet for that purpose, and the officers 
composing the board of town auditors, shall each be entitled to one 
dollar a day for their services. 



(1) r Bve rules, reaulations and all doinas oftlie board of health should be reduced 
to writing. It is held in New York that parol evidence of the orders of the board of health 
is inadmissible. Their determinations are judicial, and must be in writing. Mzeker v. Van 
Ransslaer, 15 Wend. R., 397. 

(2) Public officers take their offices with their burdens, as well as advantages, and 
services required of them by law, for which no pay is specially provided, must be considered 
as compensated by the fees allowed for other services. Miami v. Blake, 21 Ind. R., 32. 

But when the law requires the services of an individual in a special capacity, as secretary 
of a board of commissioners, or clerk of a town meeting, but makes no provision for his com- 
pensation, he is entitled to reasonable compensation. Territory v. Norris. 1 Oregon R„ 107. 

And this would apply to a moderator of a town meeting, who, in the absence of any express 
provision for pay, would be entitled to reasonable compensation, and this may be regulated 
by that allowed to other town officers for similar services, as that of town clerk for services 
as clerk of a town meeting. 
*A mended, ^ee post, p. 239. 



ART. XII.] LEGAL PROCEEDINGS. 237 

Sec. 5. No justice of the peace or town officer shall be entitled ^fte^for oath 
to any fee or compensation from any individual elected or chosen 1861 
to a town office for administering to him the oath of office 



ARTICLE TWELFTH. 
OF LEGAL PROCEEDINGS IN FAVOR OF AND AGAINST TOWNS. 

Sec. 1. Whenever any controversy or cause of action shall exist Actions, how 
between any towns of this state and between any town and indi- con8trued - 
vidual or corporation, such proceedings shall be had, either at law 
or equity, for the purpose of trying and finally settling such con- 
troversy ; and the same shall be conducted in the same manner, 
and the judgment or decree therein shall have the like effect, as Effect of judg- 
in other suits or proceedings of a similar kind between individuals ment * 
and corporations. 

Sec. 2. In all such suits and proceedings the town shall sue and Suit in name of 
be sued by its name, except where town officers shall be authorized 
by law to sue in their name of office for the benefit of the 
town. (1) 

Sec. 3. But no towns or their officers shall be required to appear, serving of pro- 
answer or plead to any such suit or action at the first term of the cess - 
court after the commencement thereof, (when the same shall be 
commenced in the circuit court,) unless the process aforesaid shall 
be served, as herein directed, at least thirty days before the com- 
mencement of the term. 

Sec. 4. In all legal proceedings against the town, by name, the On whom served, 
first process and all other proceedings required to be served shall 
be served on the supervisor of the town. And whenever any suit 
or proceeding shall be commenced, it shall be the duty of the 
supervisor to attend to the defence thereof, and to lay before the Duty of super- 
electors of the town, at the first town meeting, a full statement of V180r 
such suit or proceeding, for their direction in regard to the defence 
thereof. 

Sec. 5. On the trial of every action, in which the town will be Witnesses and 
a party or interested, the electors and inhabitants of such town shall Jurors - 
be competent witnesses and jurors, except that in suits and pro- 
ceedings by one town against another no inhabitant of either town 
shall be a juror. (2) 

Sec. 6. Any action in favor of a town, which, if brought by an Suits before; jua- 
individual, could be prosecuted before a justice of the peace, may lceB * 

(1) The form of entitling a suit in case of the town being a party, should be thus :] 
Town of ^ 

vs. [ 

J. J. J 

(2) Jf after the vote of a town not to defnd an action brought against it, the 
supervisor or person representing the town, shall nevertheless make a defence, he will not 
be a competent witness in the action, for he will be bound to indemnify the town against the 
costs of the defence. Emerson v. NewberrylS Pick., R. 377. 



238 TOWNSHIP ORGANIZATION. [dIV. IV. 

be prosecuted by such town in like manner, before any such jus- 
tice; but no action to recover shall be brought before any of the 

Except in town, justices of the peace residing in the town for the benefit of which 
the same is prosecuted, but all such actions may be brought before 
any one of the justices of the peace residing in any other town in 
the same county. 

Trespass suits. Sec. 7. "Whenever any action shall be brought to recover a 
penalty imposed for any trespass committed on the lands belonging 
to the town, if it shall appear on the trial thereof that the actual 
amount of injury to such town lands, in consequence of such tres- 
pass, exceeds the sum of twelve dollars and fifty cents, then the 
amount of actual damage, with costs of suit, shall be recovered in 
said action, instead of any penalty for the same trespass, imposed 
by the town meeting; and such recovery shall be a bar to every 
other suit for the same trespass. 

Suits in relation Sec. 8. Whenever, by any decree or decision in any suit or pro- 
' ceeding, brought to settle any controversy in relation to town com- 
mons or other lands, the common property of a town, or for the 
partition thereof, the right of any town shall be settled and con- 
firmed, the court in which such proceedings shall be had may par- 
tition such lands according to the rights of the parties. 

Recoveryof costs. Sec. 9. In all suits or proceedings, prosecuted by or against towns, 
or by or against town officers in their name of ofiice, costs shall be 
recovered as in like cases between individuals. Judgments recov- 
ered against a town or against town officers, in actions prosecuted 

Judgment a town by or against them in their name of ofiice, shall be a town charge, 
h and, when levied and collected, shall be paid to the person or per- 

sons to whom the same shall have been adjudged. (1) 

ARTICLE THIRTEENTH. 

OF THE POWERS AND RIGHTS OF COUNTIES AS BODIES COR- 
PORATE. 

Sait8 « Sec. 1. Each county, as a body corporate, has capacity : 

1st. To sue and be sued, in the manner prescribed by law. (2) 

(1) A town is authorized to indemnify its officers against a liability which 
they may incur in the bona fide discharge of their duties, although it turn out that they 
have exceeded their legal rights and authority. So held in Massachusetts. Bancroft v Lyn- 
jveU, 18 Pick. R., 566. 

(2) Counties can neitJier sue nor be sued at the common law. Their rights and 
liabilities depend on statutory enactment. Schuyler Co. v. Mercer Co., 4 Gilm. R., 20. 

An action for money had and received, is maintainable against a county to recover money 
loaned to the county board and expended for the benefit of the county, although tho contract 
of loan was invalid from want of authority on the part of the board. Wirtz v. Ormsby 
County, 1 Nev. R., 370. 

It is held, that no action lies upon a county warrant or order, but that suit should be 
brought upon the claim for which the warrant was given. Allison v. Juniata County, 50 
Penn. St. R., 351. 

All actions against a county must be commenced and prosecuted to judgment and execu- 
tion in the circuit court of that county. All actions wherein a county is plaintiff must be 
commenced and prosecuted to judgment in the county of the defendant. Ordinarily, a law 
which, in general terms, speaks of plaintiffs and defendants, applies to persons only, and does 
not apply to states, counties and municipal corporations, unless expressly named. Schuyler 
County v. Mercer County, 4 Gilm. R., 20. 
s L The declaration in an action against a county to recover for the care and medical treatment 



ART. XIII.J CORPORATE POWERS. 239 

2nd. To purchase and hold land within its own limits, and for Purchase and 
the use of its inhabitants, subject to the power of the General 
Assembly over the same. (1) 

3rd. To make such contracts and purchase and hold such per- Power to make 
senal property as may be necessary to the exercise of its corporate contract8 - 
or administrative powers j and, (2) 

4th. To make such orders for the disposition, regulation or use To make orders, 
of corporate property as may be deemed conducive to the interests 
of its inhabitants. 

Sec. 2. No county, under this organization, shall possess or exer- Restriction of 
cise any corporate powers, except such as are enumerated in this 
act, or shall be specially given by law, or shall be necessary to the 
exercise of the powers so enumerated or given. 

Sec. 3. All acts and proceedings by or against a county, in its Suits and convey 
corporate capacity, shall be in the name of the board of supervisors 
of such county; but every conveyance of lands within the limits 
of such county, made, in any manner, for the use and benefit of its 
inhabitants, shall have the same effect as if made to the board of 
supervisors. (3) 

of Bick persons, .should state that they were indigent, and residents of the county. Johnson 
v. Santa Clara County, 28 Gal. E., 545 

A county is a public corporation, suhject to the control of the legislature; and the 
legislature may_release a penalty recovered in a popular action brought for the benefit of a 
county. H liday v. People, 5 Gilm. R., 214. See also Coles v. Madison County, Breese R., 115. 

Declarations of county commissioners, are not evidence against their county, unless made 
while officially representing the county, and while engaged in the transaction respecting 
which the declaration, is made. La Salle County v. Simmons, 5 Gilm. R., 513. 

A book kept in the clerk's office of the county commissioners, under their direction, res- 
pecting the affairs of the county, though not a public record, is prima facie evidence against 
the county of the facts stated therein. Idem. 

An execution cannot be issued on a judgment against a county. Knox County v. 
Arms, 22 111. R., 175. See ante, title Counties and County Affairs, Sec. 20, p. 59. Not 
upon a decree in chancery. King et al. v. McDrew et al., 31 111. R., 418. 

(1) A. grant to the supervisors for the use of the inhabitants of a particular town, 
.is void; for, if the supervisors are a corporation, they have no capacity to take and hold 
lands as supervisors for the use of the inhabitants of a town, or for any other use or purpose 
than that of the county which they represent. Supervisors are a corporation with special 
powers and for special purposes only — they cannot act but by special authority. Lynch v. 
Hartwell, 8 Johns. R., 422. 

(2) A contract made by the proper authorities of the county, with a physician, 
to render professional services to a pauper, and not entered on record, may be proved by parol. 
One who at the request of such authorities rendered aid to a person acknowledged by them 
as a pauper, need not prove the pauper legally entitled to such aid in order to entitle him to 
recover for such service. Vermillion Co. v. Knight, 1 Scam. R., 97. 

Counties are not liable to pay interest on their contracts, except in pursuance of an express 
agreement to do so. But in actions originating in torts, they are liable to the same extent 
as private persons. County of Pike v. Hoxford, 11 111. R., 170. 

(3) A county Jias not the capacity to be sued, except it is conferred by spe- 
cial statute ; and when that capacity is so conferred, the mode pointed out by the statute 
must be strictly pursued. Counties which have adopted township organization, can be sued 
only in the name of the hoard of supervisors. If a county is sued by any other name it is 
error, and there is no necessity of a plea of misnomer, as in ordinary cases. County of Hock 
Island v. Steele, 31 111. R., 543. 

The action should be brought against the board of supervisors, and not against the indi- 
vidual members of such board. Magee v. Cutler, 43 Barb. R„ (N. Y.) 239. 

The board of supervisors of a county having general authority to commence suits, may 
employ counsel in such suits, and even though an error is made as to their having a cause 
of action, the counsel have a claim against the county for their reasonable charges ; and 
if the supervisors allow such accounts, and issue an order for the amount, the court will not 
interfere, by injunction, to prevent payment of such order. Gillespie v. Broas, 23 Barb. R., 
(N. Y.)370. 

The law which gave jurisdiction over county affairs to the hoard of supervisors, went into 
operation on the first Tuesday in April, 1850. The county corporation was not abolished by 
this law. Its name was changed, but suits instituted in the old name do not therefore abate. 
Toivn of Ottawa v. County of- La Salle, 11 111. R., 654. 

By the constitution, the right of a county to adopt township organization is made to depend 



240 TOWNSHIP ORGANIZATION. [DIV. IV. 

Exercise of g EC 4 # ^he powers of a county, as a body politic, can only be 

exercised by the board of supervisors thereof, or in pursuance of a 
resolution by them adopted. (1) 
Serving of pro- Sec. 5. In all suits or proceedings against a county the service 
3861. °^ P rocess sna U De D J leaving a copy thereof with the clerk of the 

board of supervisors, and by leaving also a copy with the chairman 
of said board. In case there shall be no chairman acting, then by 
leaving a copy with any three members of said board. (2) 



ARTICLE FOURTEENTH. 
OF THE BOARD OF SUPERVISORS. 

Annual meeting. Sec. 1. The supervisors of the several cities and towns of the 
counties of this state, that shall adopt the town system, shall meet, 
annually, in their respective counties, for the dispatch of business, 

Special meetings. as a board, of supervisors. They may also hold special meetings, 
at such times and places as they may find convenient, and shall 
have power to adjourn, from time to time, as they may deem 
necessary. (3) 

Special meet- Sec. 2. Special meetings of the board of supervisors shall be 

held only when requested by at least one-third of the members of 
the board ; which request shall be in writing, addressed to the clerk 
of the board, and specifying the time and place of such meeting; 
upon reception of which the clerk shall immediately transmit 
notice, in writing, of such meeting to each of the members of the 



ings, when held. 
1861. 



expressly upon the affirmative vote of a majority of all within the county entitled to vote on 
the question. The power of the county court, over the county business, continues until the 
organization is adopted by such vote. People ex rtl. v. Brown et al., 11 111. R., 478. 

A. conveyance of land to a county, in consideration that the county seat be located at a 
particular place, does not deprive the legislature of the power to remove the county seat. The 
donors of the land, if the conveyance be unconditional, cannot recover damages for such re- 
moval. An agreement that the land should revert, in case of removal, should be expressed 
in the conveyance, and cannot rest in parol. Adams et al. v. Logan County, 11 111. R., 336. 

If a specific fund be given by the legislature to a county, to be held in trust for certain pur- 
poses, and the fund be diverted from its purpose, and mixed with the general funds of the 
county, a mandamus may be awarded, directing the payment of the fund to the proper pur- 
pose out of the general funds of the county. Pike County v. The State, 11 111. R.. 202. 

(1) The board of supervisors have no power to contract, or perform official acts, 
except as a board. County Commissoners, Randolph County v. Jones, Breese R., 237. Lynch 
v. Hartwell, 8 Johns. R.. 422. 

When acting as a board in the line of their duty, the county is bound by their acts. Ver- 
milion County v. Knight, 1 Scam. R., 97. 

Counties, like individuals, will be held to their liabilities, and will not be permitted 
to avoid them because of unimportant irregularities in the action of their officers. Johnson 
v. Stark County, 24 111. R., 75. 

(2) The law in regard to the service of process upon a county, under the county 
commissioners system, required that a term of the court should intervene between the time 
of service and the return day. See title Counties and County Affairs, Sec. 18, ante, p. 58 
It is held that this law applies to service on the board of supervisors, and that the court 
will only take notice of their regular meetings. But if it is shown that a special meeting 
intervened, it would probably answer the purpose of a regular meeting. Board of Super- 
visors of Kane County v. Young et al., 31 111. R., 194. 

The supreme court have applied the same rule in case of mandamus against the board of 
supervisors. People ex rel. Stine v. Board Supervisors, Vermilion County. January term, 
Springfield, 1867. 

(3) In regard to Cook county, the new constitution has made the following 
provision: 

Art. 10, Sec. 7. The county affairs of Cook county shall be managed by a board of com- 
missioners of fifteen persons, ten of whom shall be elected from the city of Chicago, and five 
from towns outside of said city, in such manner as may be provided by law. 



AUT. XIV.] BOARD OF SUPERVISORS. 241 

board. The clerk shall also cause notice of such meeting to be No vjy h J to bo 
published in some newspaper published in the county, if any be pu 
published therein. (1) 

Sec. 3. The annual meetings of the board of supervisors shall be Day of meeting, 
holden on the second Tuesday in September, in each and every year, 
at the county seat; and if the court house be deemed convenient, 
to be held therein. 

Sec. 4. The board of supervisors, at their first meeting in every Shall organize bj 
year, shall organize by choosing one of their number as chairman, ^JJ™ n8 chair " - 
who shall preside at all meetings of the board during the year. 
In case of his absence at any meeting, the members present shall 
choose one of their number as temporary chairman. (2) 

(1) Form of request for Special Meeting of Board of Supervisors. 

To A. B., Esq., Clerk of the Board of Supervisors of county, State 

of Illinois: 
The undersigned, being one-third of the members of the board of super- 
visors of said county of , do request that a special meeting of said 

board be held, to convene on the day of A.D. 18 — , at the court- 
house in the town of in said county. 

Dated this day of , A.D. 18—. 

C. D.,- L. M., 

E. F., 0. P., 

G. H., S. T., 

I. J., V. W. 

Form of Notice to each Supervisor of Special Meeting of the Board. 

To J. -M., Esq., a member of the Board of Supervisors of county : 

You are herby notified, that in accordance with a request in writing 
addressed to the undersigned, clerk of said board of supervisors, by one- 
third of the members thereof, a special meeting of said board will be 

held, to convene on the day of , A.D. 18 — , at the court house 

in the town of in said county. 

Dated at , this day of , 18 — . 

A. B., Clerk of Board of Supervisors. 

Form of Notice of Special Meeting of Board of Supervisors, for Publication in 

Newspaper. 

SPECIAL MEETING OF BOARD OF SUPERVISORS. 

Notice is hereby given, that pursuant to a request of one-third of the 

members of the board of supervisors of county, a special meeting 

of said board will be held, to convene on the day of , 18 — , at 

the court house in the town of in said county. 

Dated at , this day of , 18 — . 

A. B., Clerk. 

(2) Organization of the Board and Business.— The board of supervisors may 
elect a temporary chairman, whether there is a regular chairman in existence or not, and 
any meeting of the board at which a quorum is present must be regarded as valid. Town of 
Ottawa v. Co. of La Salle, 11 111. R., 654. That is, if regularly called in pursuance of law. 
The board of supervisors is intended to be organized as a deliberative body. In the absence 
of any special rules which they may adopt for their government, they will be governed by 
the general rules of parliamentary law. See ante, p. 106, note. Like all other bodies of the 
kind, they should perform their work through the aid of committees. The chairman or pre- 
siding officer appoints all committees, unless the assembly direct otherwise. Committees 
should consist of odd numbers, a6 three, five, seven, or more. Committees are appointed with 
reference to the subjects of which the assembly has cognizance. 

The standing committees of a board of supervisors are usually the following: Ac- 



Powers of the 
board. 



Audit accounts 
against counties 



242 TOWNSHIP ORGANIZATION. [dIY. IT. 

Produce certifi- g EC- 5 The supervisors shall severally lay before the board of 

cate of election. . in • o 1 • 1 1 • 1 

1S54. supervisors, at the first meeting after their election, their several 

certificates of election ; which shall be examined by the board of 

supervisors, and, if found regular, shall be filed in the office of the 

clerk of the county court. 

Sec. 6. The board of supervisors of each county in this state 

shall have power, at their annual meetings, or at any other 

meeting : 
To make orders. 1st. To make all such orders concerning the corporate property 

of the county as they may deem expedient. (1) 

2nd. To audit all accounts chargeable against such county, and 

to direct the raising of such sums as may be necessary to defray 

the same. (2) 

counts; equalization of assessment ; education; finance; jury list; poor and poor farm; 
public buildings ; refunding taxes ; roads and bridges. 

The first member named on a committee is the chairman, whose duty it is to regulate and 
preside at their meetings, and make report of their conclusions. 

Select committees are sometimes appointed to consider a particular subject, where it is 
desired to give it special attention. It is the rule that the person moving a seleet committee 
should be first named as a member of it. 

A motion to refer to a standing committee takes precedent of a motion to refer to a select 
committee, and should be first put. 

The report of a committee embodies their conclusions concerning the subject referred. 
It may be verbal or written. The formal words of a written report are as follows : 

Form of Report of Committee. 

The committee on accounts [or, as the case may be,) to whom was referred 
the matter of [state the matter referred,) have had the same under consid- 
eration, and beg leave to report, that [here set forth the conclusions of the 
committee.) 

All of which is respectfully submitted. 

The report may be signed by the chairman, under the direction of the committee, or by 
the members individually. All the members of a committee should have notice of their meet- 
ing, after which a majority may act and report. 

When a report is made there are two questions upon it : 1. Its acceptance. 2. Its adop- 
tion. A report i3 presumed to be accepted, and no motion to that effect is necessary. The 
question should be on its adoption. Concerning general parliamentary rules, see ante, 
p. 106, note. 

(1) The board of supervisors is a quasi corporation, and possess only such powers as are con- 
ferred by law. It has no power to appropriate any portion of the county funds to the use 
or benefit of a circuit judge, as compensation to him in that capacity. Where county authori- 
ties appropriate the county funds for such purpose, a court of chancery will afford preventive 
relief by injunction. Perry et al. v. Kinnear et al., 42 111. R., 160; Beauchamp v. Kankakee 
Co., 45 111. K., 274. 

Under the act providing for an election upon the question of the removal of a county seat, 
and providing that in the event of the vote being in favor of removal, the board of super- 
visors shall erect or procure suitable buildings for the public offices, and a suitable place lor 
holding courts, the board of supervisors may, in their official capacity, accept a contract of 
subscription from individuals, to be paid on condition the vote shall be favorable to removal, 
for the purpose of aiding in the erection of the public buildings contemplated by the act, and 
such a subscription will be valid and binding upon the parties making it. Thompson v. 
Board of Supervisors, etc., 40 111. R., 380. 

(2) Accounts Chargeable against a County. — The power granted to supervisors 
of a count} 7 to examine, settle and allow all accounts chargeable against a county, involves 
the right to reject, if sufficient reason, in the opinion of the supervisors, is not presented for 
the allowance. People, v. Supervisors Dutchess Co., 9 Wend. R., 508. 

It is held in Michigan that a county is not liable to an attorney for defending a prisoner at 
the request of the court when the prisoner is poor and unable to employ counsel. Bacon v. 
Wayne Co., 1 Mich. R., 461. 

A county is not liable to the clerk of the circuit court for his fees on a scire facias upon 
a recognizance. Edgar Co. v. Mayo, 3 Gilm. R., 82. 

But it is the duty of the coiiDty to furnish lights and fuel for the use of the office of the clerk 
of the circuit court. He is obliged to keep his office open at all reasonable hours for the 
accommodation of the public, hence lights and fuel are necessary. The county should likewise 
provide furniture, lights and fuel for the circuit court; and the same may be supplied to the 



ART. XIV.J BOARD OF SUPERVISORS. 240 

board of supervisors for their convenience during their sessions. Board of Supervisors of Be 
Kalb Co. v. Bcvridge, 10 111. H., 312. 

The btatnte provides, (Rev. Stat., p. 251, Sac 14,) the clerks of the circuit court, and 
clerks of the county court shall provide all the necessary books for their respective offices, 
and .i safe, press or presses, with lucks and keys, for the safe keeping of the archives of their 
respective offices, and it is the duty of the board of supervisors to make allowances for the 
same, and for articles of stationery necessary for their respective courts, out of the county 
treasury trom time to time. Stationery includes necessary blanks for use. It ordinarily 
includes all articles usually sold by 6tationers. Knox Co. vs. Arms, 22 111. R-, 175. The 
,ouuiy may appoint an agent to purchase stationery for these offices, but if he fails to keep 
tnem properly supplied, the clerks may make the purchases themselves and bind the county. 
' igt.ty v. Hancock Co., 46 111. R., 356. 

Sheriffs are not compelled to keep their offices at the county seat as the clerks are,"and 
there being no statute warranting it, they cannot be allowed pay from the county for lights 
and fuel for their offices. Armsby v. Supervisors of Warren Co., 20 111. R., 126. Sheriffs are 
not allowed pay from the county for stationery used in the discharge of the duties of their 
offices; nor for mileage in summoning grand and petit juries. It is held that there is no 
legal or moral obligation on the counties to pay such charges. These officers take their offices 
with all the benefits and burthens given or imposed upou them. Bryner v. Board of Super- 
visors. 21 111. R., 195. 

It i- held in Wisconsin, Jefferson Co. v. Besley, 5 Wis. R., 131, that the necessary lights and 
fuel for keeping of the several county offices in a suitable condition fcr the transaction of 
business, are a proper county charge ; but this applies only to those officers who are enti- 
tled by law to keep their offices open for the accommodation of the public. Board of Super- 
visors' of BeKalb Co. v. Bcvendge, 16 111. R., 312. Under this construction sheriffs would 
no doubt be allowed for necessary fuel and lights lor the county jail. Opin. Att'y Gen'l 
Colville, Minn., July 7, 1S67. 

The expense of keeping property of a county in repair, is a proper subject of charge against 
the county, as. also the expense of cleaning and painting courtrooms. And it is held in 
New York that an allowance of the account is final and conclusive as regards amount. Peo- 
ple v. Scout, 23 Barb. R., (N. Y.,) 349. 

But it seems that in Illinois an appeal may be taken from tha decision of the board of super- 
visors in regard to the allowance of an account. See Knox Co. v. Arms, 22 111. R., 175. 
This case w.>s an appeal from the board of supervisors. 

Neither the state nor county is bound by law to pay the fees of officers in prosecutions in 
behalf of the people where no conviction is had; and where the defendant is convicted, the 
officers must look to the defendant's estate for their costs and run the risk of losing them if 
he be insolvent. Kitchell v. Madison Co., 4 Scam. R , 163 ; Coun'y of Crawford v. Spenny, 
21 111. R., 288. 

The statute expressly makes a county liable for costs where a judgment is rendered 
against a county. See title * Counties and County Affairs." Sec. 20, antep. 57. County of 
Sangamon v. Brown, 13 111. R., 207. 

A-fter a claim against a county has been presented to the board of supervisors 
for allowance, and has been passed upon by that body, the amount determined to be due 
declared, and its payment provided for in the mode prescribed by law, no action will lie against 
the county to recover the same claim, upon the grotind that the decision of the board was 
erroneous in respect to the amount due to the plaintiff. (Seldon, J. dissenting.) Martin 
v. Greene, 29 N.Y., (2 Tiffany), R., 645. 

Where an account consisting of a single item of $200 was presented to the county board 
who allowed thereon $100, from which order of allowance the claimant took an appeal, and 
afterwards and before the appeal was determined, he obtained a county order for the $100 so 
allowed, and gave a receipt therefor. Held, that this was a waiver of the appeal, and 
amounted to a satisfaction of the claim. Pulling v. Supervisors Columbia Co., 3 Wis. R, 
337. Smith. J., dissenting. 

A board of supervisors, by auditing and paying part of a claim presented, is not thereby 
precluded from contesting the residue, even upon a principle which would show the former 
allowance to have been improper. A mandamus will not lie to a board of supervisors, to 
Control them in the exercise of their discretion as to the amount at which an account pre- 
sented shall be audited. People v. Supervisors, 1 Hill, R., 362. 

Where a clear legal duty rests upon the board of supervisors, being a matter in which 
they have no discretion, mandamus will lie, and is the proper remedy to compel them to 
perform that duty. Boyce v. Supervisors of Cayuga, 20 Barb., R., 294. 

Boards of supervisors can not bind their counties by an act not within the limits of the 
express powers conferred upon them by statute. They cannot allow a claim on any notions 
of their own as to its equity. Chemung Canal Bank v. Supervisois of Cnemung, 5 Deuio., R. 
51/ ■ 

County Taxes. — The new constitution on this subject declares 

Art. 9, Sec. 8. County authorities shall never assess taxes, the aggregate of which shall 
exceed seventy-five cents per one hundred dollars valuation, except for the payment of indebt- 
edness existing at the adoption of this constitution, unless authorized by a vote of the people 
of the county. 

Railroad aid.— On the subject of granting aid by counties to railroads or other private 
corporations, the new constitution declares 

Municipal Subscriptions to Railroad3 or Private Corporations.— No county, city, 
town, township or other municipality, shall ever become subscriber to the capital stock 
of any railroad or private corporations, or make donation to, or loan its credit in aid of such 
corporation : Provid'd, however, That the adoption of this article shall not be construed as 
affecting the right of any such municipality to make such subscriptions where the same 
have been authorized, under existing laws, by a vote Cf the people of such municipalities 
prior to such adoption. 






244 TOWNSHIP ORGANIZATION. [DIV. IY. 

Audit accounts 33. To audit the accounts of town officers and other persons 

against their respective towns, as are not otherwise by law provided, 

and to direct the raising of such sums as may be necessary to defray 

the same. 

Appropriations 4th. To appropriate funds to aid in the construction of roads and 

bridge* 8 and bridges, in any part of their respective counties, whenever a 

majority of the whole board of the county may deem it proper and 

expedient. (1) 

Change bounda- 5th. To change the boundaries of towns and to create new towns, 

towns" ° rea e their respective counties, in manner provided by law j to designate 

1S0i - and give names thereto, and to fix the place of holding the first 

town meeting therein. (2) 
change names of 6tb< To c hange the name of any town or incorporated village in 
18611 their respective counties, upon petition of a majority of the voters 

of said town or incorporated village. 
Vacattng of state tjfa »j>o relocate or vacate state roads in their respective counties, 
isoi." as the public interest may require, in manner provided by law. 

(3) 
ffo perform other Stli. To perform all other duties, not inconsistent with this act, 
which may be required of or enjoined on them by any laws of this 
state, or which are enjoined upon county courts, when holding 
terms for the transaction of county business in those counties not 
adopting township organization. (4) 

(1) Hoods and Uridges. — The act to provide for township organization does not give the 
board of supervisors authority to appropriate the county funds in aid of the construction of 
toll bridges, or to aid a private corporation in the construction of a tree bridge. And a bill 
to eDJoin them for so mis-applying the funds of the county is a proper remedy, and will 
be sustained. — Colton et al. v. Hanchctt ttnl., 13 Ills., 615. 

A county is not liable at common law nor by our statute, for damages caused by the defec- 
tive condition of a bridge. Hedjes v. County of Madison, 1 Gilman,, R.., 567. Even though 
the legislature has made it the duty of the county to keep it in repair. Rtardon v. Si. Louts 
Co., 36 Mo., R., 55-5. 

A county is not liable for damages sustained by a party from such a construction of a 
bridge that the water washed off large quantities of the plaintiff's laud. Crowelly. Sonomi 
Co.. 25 Cal. R., 313. 

(2) The manner provided for changing boundaries of towns and creating new towns, will 
be found ante p. 90, Art. 3. Sec. 1. 

(3) The manner provided for relocating or vacating state roads, will be found in Art. 17, 
Sec. 58, post, p. 186. % 

(4) A. eounty may employ an agent to transact any business which concerns the 
countv, and the agent mav recover a fair compensation for bis service*. Webster Co Y.l'aylor, 
19 Iowa R., 117. Hannibal, etc.. R.R. Co. v. Marion Qjv.niy, 36 Mo. R., 294. 

The County JBoard cannot borrow money or issue a warrant as collateral security for 
money borrowed. Wai z v. Ormsby County, 1 Nev. R., 370. 

Where the supervisors of a county have neglected to perform any duty required of them 
at their annual meeting, they may be compelled by mandamus to meet again and perform it. 
They can not by their neglect nullify a statute imposing duties upon them. This was a case 
where the board of supervisors of Chenango county, in the state of New York, at their an- 
nual meeting in 1851, neglected to issue warrants for the military commutation, which it 
was their duty to do by law at that meeting The Supreme court issued a mandamus 
requiring them to meet and issue the warrants. Held. That the mandamus was properly 
issued. People v. Supervisors of S>ienango, 4 Seld. R., 317. 

Compensation of Cotinty Officers. — The neiv constitution has given power to 
the county board to fix the compensation of county officers as follows : 

Art. 10, Sec. 10. The county board, except as provided iu section nine of this article, shall 
fix the compensation of all county officers, with the amount of their necessary clerk hire, 
stationery, fuel and other expenses, and in all cases where fees are provided for, said compen- 
sation shall be paid only out of, and shall in no instance exceed the fees actually collected; 
they 6hall not allow either of them more per annum than fifteen hundred dollars, in counties 
not exceeding twenty thousand inhabitants; two thousand dollars in counties containing 
twenty thousand and not exceeding thirty thousand inhabitants ; twenty-five hundred dol- 
lars in counties containing thirty thousand and not exceeding fifty thousand inhabitants ; 
three thousand dollars in counties containing fifty thousand and not exceeding seventy 



ART. XIV.J BOARD OF SUPERVISORS. 245 

Sec. 7th. A majority of the supervisors of any county shall con-Q uorum - 
stitute a quorum for the transaction of business; and all questions 
which shall arise at meetings shall be determined by the votes of 
the majority of the supervisors present, except in such cases as is 
otherwise provided. 

Sec. 8. The board of supervisors shall sit with open doors, and Open doors, 
all persons may attend their meetings. 

Sec. 9. Every chairman of the board of supervisors shall have Chairman to ad- 
power to administer an oath to any person concerning any matters mim8ter oat 8 ' 
submitted to the board or connected with their powers and duties. 

Sec. 10. The clerk of the county court shall be clerk of the cierk of the 
board of supervisors, whose general duties shall be : (1) board ' 

1st. To record in a book, to be provided for that purpose, all the Record proceed- 
proceedings of the board. 1Dg8# 

2nd. To make regular entries of all the resolutions or decisions Enter decisions 
on all questions concerning the raising or payment of moneys, or for 
the regulating of affairs under their control. 

3d. To record the vote of the supervisors on any question sub- Record vote, 
mitted to the board, if required by any member of the board. 

4 tii. To file and preserve all accounts acted upon by the board. File accounts. 

Sec. 11. The clerk shall receive a reasonable compensation for Clerk's fees. 
his services, to be fixed by the board, and to be paid by the 
county. 

Sec. 12. The books, records and accounts of the board of super- Shall hold books 
visors shall be deposited with the clerk, and shall be open, without 
reward, to the examination of all persons. 

Sec. 13. It shall be the duty of the clerk to designate upon every Accounts, how 
account upon which any sum shall be audited and allowed by the mdor8ed - 
board the charges for which the same was allowed, and he shall 
deliver to any person who may demand it a certified copy of any certified copies, 
account on file in his office on receiving from such person five 
cents for every one hundred words contained in said copy. 

Sec. 14. It shall be the duty of the several boards of supervisors, Building of court 
as often as it shall be necessary, to build court houses and jails, or 0U8e8an ,ai! 
cause the same to be repaired, in their respective counties, at the 
expense of such counties. 

Sec. 15. It shall be the duty of the board of supervisors to take Charge of poor, 
charge of the poor and the management of the poor house in their xggi. 
respective counties. And the overseers of the poor of the several 

thousand inhabitants ; thirty -five hundred dollars in counties containing seventy thousand 
and not exceeding one hundred thousand inhabitants ; and tour thousand dollars in counties 
containing over one hundred thousand and not exceeding two hundred and fifty thousand 
inhabitants ; and not more than one thousand dollars additional compensation for each addi- 
tional one hundred thousand inhabitants : Provided, That the compensation of no officer shall 
be increased or diminished during his term of office. All fees or allowances by them received, 
in excess of their said compensation, shall be paid into the county treasury. 

Sec. 11. The fees of township officers, and of each class of county officers, shall be uniform 
in the class of counties to which they respectively belong. The compensation herein pro- 
vided for shall apply only to officers hereafter elected, but all fees established by special laws 
6hall cease at the adoption of this constitution, and such officers 6hall receive only such fees 
as are provided by general law. 

(1) For further powers and duties of the board of supervisors see title " Counties AND 
County Affairs," Div. II., ante p. 56. 



246 



TOWNSHIP ORGANIZATION. 



[DIV. 



IV. 



Creation of new 
towns or change 
of name. 
1861. 



Compensation of 
supervisors. 

1S57 



Proceedings to 
l.e published. 
1801. 



Neglect of duty. 
Penalty. 



towns shall be accountable to and their compensation and accounts 
shall be audited by the board of supervisors and paid by the 
county. (1) 

Sec. 16. "Whenever the board of supervisors shall create a new 
town, or change the name of an existing town or incorporated vil- 
lage, the clerk shall transmit to the auditor of public accounts a 
statement of such action on the part of the board; and if it shall 
appear that there is already a town or incorporated village in the 
state of the same name as that designated by the supervisors, the 
auditor shall so inform the clerk of said board ; and the supervisors 
shall designate another name, not already applied to any other 
town or incorporated village within the state. 

Sec. 17. Each member of the board of supervisors shall be 
allowed a compensation for his services and expenses in attending 
the meeting of the board, or for attending to any other business, 
for the benefit of the county, or as a member of the board, not 
exceeding two dollars per day, and no more. 

Sec. 18. The clerk of the board of supervisors shall, at the close 
of each annual or special meeting of the board, cause a brief state- 
ment of the proceedings thereof to be published in a newspaper 
published in the county, in which shall be set forth the name of 
every individual who shall have had any account audited and 
allowed by said board, and the amount of said claim, as allowed, 
and amount claimed, and also their proceedings upon the equaliza- 
tion of the assessment roll. 

Sec. 19. If any supervisor shall willfully refuse or neglect to 
perform any of the duties which are or shall be required of him by 
law as a member of the board of supervisors, he shall, for every 
such offence, forfeit the sum of two hundred dollars. 



ARTICLE FIFTEENTH. 



OF THE COUNTY TREASURER. 



(2) 



Acceptance of 
olnce. 



Bond. 



Sec. 1. Every person elected or appointed to the office of county 
treasurer shall, within ten days after he is notified of his election 
or appointment, file in the office of the county court clerk a written 
acceptance of the office of treasurer; and before he enters upon 
the duties of his office shall give bond to the board of supervisors 
of the county, with two or more sufficient sureties, to be approved 
by the board of supervisors, and in such sum as they shall olirect, 

I (1) If a claim for services rendered to the poor of a county or township, be dirt- 
allowed by the county board, in whole or in part, the claimant may appeal, or, at his 
option, bring an action against the county. So held in Indiana. Bartholomew v. Wright, 
12 Ind. R., 187. 

Appeals were allowed from any decision or order of the county court. See title Counties 
and County Affairs. Sec. 25a, ante, p 69. 

And appeals have been allowed from decisions of the Board of Supervisors in like manner. 
See Knox County v . Arms, 22 111. R., 175, which was an appeal from the board of super- 
visors. 

(2) For general duties of county treasurer, see title County Treasurer and Co ox tt 
Funds, Div. Ill, ante p. <J5. 



ART. XV.] COUNTY TREASURER. 247 

conditioned that such person shall faithfully execute the duties of Condition. 
his office, and shall pay, according to law, all moneys which shall 
come to his hands as treasurer, and render a just and true account 
thereof to the board of supervisors or to the auditor of public 
accounts of this state, when thereupon required. (1) 

Sec. 2. The bond required by the preceding section shall not, shall not dis- 
however, dispense with the necessity of the bond from such treas- J? county coi-° n 
urer, as county collector of taxes, as now provided by law, and^ 01 "- 
nothing in this act shall be construed as having that effect ; but 
the county treasurer shall be required to execute bond, as county 
collector, the same and in the same manner as is now by law 
provided. (2) 

Sec. 3. Such bond, when approved by the board of supervisors, aM ro^ordf b ° nd 
shall be entered upon the records and filed in the office of the 
county clerk. Said clerk shall forward a certified copy thereof to 
the auditor of public accounts, who shall file the same in his office ; 

(1) Form of Written acceptance of County Treasurer to be filed in the County 
Clerk's Office. 

To C. B., Esq., clerk of the county court of county, in the state 

of Illinois : 

Sir : — Having been elected [or appointed) on the day of , A- D. 

18 — , to the office of county treasurer of said county, I hereby notify you 
that I accept of that office. 

Dated at , in said county, this day of , A. D. 18 — . 

J. H. 

Form of County Treasurer's Bond. 
Know all men by these Presents, That we, J. H., as principal, and 

L. S. and A. B. as sureties of the county of , in the state of Illinois, 

are held and firmly bound unto the supervisors of the said county of , 

.in the sum of (in a sum directed by the supervisors) for the payment of 
which, well and truly to be made, we bind ourselves, our heirs, executors 
and administrators, and each of them, firmly by these presents. Sealed 

with our seals, and dated this day of , A. D. 18 — . 

The condition of this obligation is such, That whereas, the above 
bounden J. H. has been elected (or appointed) county treasurer of the 

said county of , and has accepted of the office. Now, therefore, if 

the said J. H. shall faithfully execute the duties of his said office, and 
shall pay according to law, all moneys which shall come to his hands as 
such treasurer, and render a just and true account thereof to the board 
of supervisors, or to the auditor of public accounts of this state, when 
thereupon required, then this obligation to be void and of no effect, 
otherwise to remain in full force and effect. 

J. H. [seal.] 
L. S. [seal.] 
A. B. [seal.] 

The sureties on the official bond of a county treasurer were held liable for the 
balance found upon settlement of his account, to be due by him to the county, though he was 
charged therein with scrip issued by the county during his term, in violation of law, but 
which he had received, deposited, and paid out as money. Wylie v. Gallagher, 46 Penn. St. 
R., 205. 

A county court, or board of supervisors, can remove a county treasurer only for causes 
Bpecified in the statute ; they have no general powers of removal. Clark v. The People, 15 
Ills. R., 213. See title CouNir Treasurers and County Funds, Sec. 15, p. 83. 

(2) Sec title Revenue- Sec. 145, ante, p. 145. 



248 TOWNSHIP ORGANIZATION. [dIV. IV. 






and such copy shall have the same force and effect as the original 
bond. County treasurers' bonds shall be a lien against their real 
estate. 

dtataSSf g and Sec - 4 - Ifc sha]1 be tte dut J of the C0UIlt y treasurer to receive 
moneys. all moneys belonging to the county, from whatever source they may 

be derived, and all moneys belonging to the state, which, by law, 
are directed to be paid to him, and to pay and apply such moneys 
in the manner required by law. (1) 
Jj^JP account of g EC> 5 rphe county treasurer shall keep a just and true account 
of the receipts and expenditures of all moneys, in a book or books, 
to be kept for that purpose; which books shall be provided at tb« 
expense of the county. (2) 
u^'against^e- ^ EC * ® m -^e coun ty treasurer shall have the same power to col- 
linquents or non- lect the taxes charged against the delinquent or non-resident lands 
or town lots, and to make sale thereof for the same, as is now 
or may hereafter be vested in the sheriff or collector, under the 
general laws of this state, and shall account for and pay over the 
state tax, in like manner and at the same time that county collectors 
are required to pay over said tax. Said treasurer shall be entitled 
to like fees for delinquent real estate and for traveling to the seat 
of government as county collectors are entitled to under the rev- 
Return of assess- enue laws. The county treasurer shall, within twenty days after 
ment roll. having completed the collection of the delinquent tax, deposit the 

assessment rolls or tax books returned by the town collectors in the 
office of the county clerk. 
Sk b ccount , s . 0ks Sec - 7 - At the annuaI meeting of the board of supervisors, or 
at such other times as they shall direct, the county treasurer shall 
exhibit to them all his books and accounts, and all vouchers relat- 
ing to the same, to be credited and allowed. 

(1) Strictly, the county treasurer should pay over the identical money received by him. — 
Opin. Att'y Gen'l Cole, Minn , vol. 1, p. 256. 

County orders paid by the treasurer have lost their vitality, and cannot again become 
valid securities in the hands of an innocent holder. But where, without any fraudulent in- 
tents, the holder of large county orders exchanged them with the treasurer lor smaller ones, 
which he had paid, but which have never been allowed in his accounts, the debt represented 
by the large orders is not extinguished. Where, however, the holder of county orders lends 
them to the treasurer and thereby enables him to use them as his vouchers on a settlement, 
and is afterwards repaid in other orders which have been paid by the treasurer subsequent 
to the settlement he is estopped from denying the payment of the orders lent, and cannot 
recover upon those returned to him. Chemung Canal Bank v. Board of Supervisors of 
Chemung Co., 5 Denio, R., 517. 

A county is not bound to pay interest on county orders. Matteson Co. v. Bartlett, 1 Scam. 
R., 67. 

County commissioners or boards af supervisors making settlements with col- 
lectors of the revenue, act as agents of the state, and do not adjudicate as a court. Their 
orders entered upon their records, are memoranda only, and only prima facie evidence of 
the correctness of the result stated. Mistakes made in such settlement may be inquired 
into and corrected. Washington County v. Parlier, et al^ 5 Oilm., R., 232. 

A. county treasurer is an officer who acts on his own responsibility and independently 
of the county board, so far as the keeping of the funds of the state and county is concerned. 
He is the proper custodian of the funds, and the board have no legal authority to direct him 
where, or in what manner the funds shall be kept. So held in Indiana. (Ilanna J., dis- 
senting.) Halbert v. State, 22 Ind. R., 126. 

Where a county treasurer fraudulently collected money as taxes, and converted the same 
to his own use, it was held, that the county was not liable. Estep v. Keokuk County, 18 
Iowa R., 199. 

A county treasurer has no authority whatever to take a note payable to himself as treas- 
urer ; nor has he authority to assign or transfer such a note, or sue' on it. Berry v. Hamby, 
1 Scam. (111.) R., 468. 

(2) See title County Treasurers and County Funds, Sees. 7, 11, ante. pp. 97 and S8. 



ART. XVI.] ASSESSMENT OF PROPERTY. 249 

Sec. 8. Upon the death, resignation or removal from office of any J 3001 " delivered 
county treasurer, all the books and papers belonging to his office oath, 
shall be delivered to his successor in office, upon his oath, or, in 
case of his death, upon the oath of his executors or administrators. 
In case such treasurer has left the county, a demand may be made 
of any one having charge of the books or papers belonging to said 
office, who shall surrender them up, and on oath, if required. 

Sec. 9. If any such preceding county treasurer, or, in case of his f en * lfc y f ° r ne &' 

,,.-,. J r , .°. i ii. n i lect to deliver 

death, if his executors or administrators shall refuse or neglect to books, 
deliver such books, papers and moneys, upon oath, when lawfully 
required or demanded, every such person shall forfeit, for the use 
of the county, the sum of one thousand dollars. 

Sec. 10. The county collectors, or treasurers in counties adopting Fees on settle- 
township organization, shall hereafter be allowed, in their settle- ™?and other" 11 *" 
ment with the auditor, for receiving the state tax from the town duties « 
collectors, and paying the same into the state treasury, adjusting 1837 - 
the accounts of said town collectors, and correcting delinquent lg61 
lists, a commission of two per cent., when the amount received 
does not exceed ten thousand dollars, and one per cent, on all sums 
received from town collectors over that amount, and shall be 
allowed one per cent for receiving the county and town tax, and 
one per cent, for paying out the same : Provided, that he shall not 
be allowed any commission for paying over to a successor. 

Sec. 11. Whenever any county treasurer shall fail or refuse to Failure to pay 
pay over the county revenue, the board of supervisors shall cause 
suit to be prosecuted on his bond; and the auditor shall have the suit on bond, 
same power to prosecute suit against the county treasurers, on the 
copy of their bonds, as is allowed by law for prosecuting suits 
against county collectors. 

Sec. 12. All moneys recovered in any such action shall be paid Jo°w ap^pS?' 
or appropriated for the uses contemplated or directed by law. ted - 



ARTICLE EIGHTEENTH. 
MISCELLANEOUS PROVISIONS. 
Sec. 4. Upon the petition of fifty legal voters of any county XT . 

t . i • •, i n i i -i J ^i Voteonabol- 

actmg under township organization, it shall be the duty of the ishing of town- 
county clerk, upon the filing of such petition w T ith him, to cause latK>nT gam * 
notices to be posted up in three of the most public places in each 
town of such county, at least twenly days previous to the next 
annual town meeting that the question of township organization 
under this act will be voted upon. At such meeting said vote 
shall be taken by ballot, to be written or printed, or partly writ- 
ten and partly printed, "for township organization," or "against 
township organization," and shall be canvassed and returned 
in like manner as votes for State and county officers. 

Sec. 5. If it shall appear, by the returns of said election, that a 



250 TOWNSHIP ORGANIZATION [DIV. V. 

Effect of vote majority of all the voters voting at such election, have voted 
to abolish. against township organization, then the county so voting shall 
cease to act under township organization, from and after the 
election and qualification of such county officers as are provided 
for in such counties as have never adopted township organiza- 
tional) 
Election of offi- Sec. 6. At the next general election after the voters of any 
abo^shinTpre- sucn count y naye determined against township organization, 
vails. there shall be an election for all the officers required by law in 

counties that have never adopted township organization, except 
such officers as may have been- previously elected and are enti- 
tled to hold over ; and notice of such election shall be given as 
is now providetl by law. 
Three highway Sec. 7. That at the first town meeting in each town, under 
foTeeSed "t this uct, in counties that have or may hereafter adopt township 
first town meet- organization, there shall be elected three commissioners of higli- 
ways, one of which shall hold his office for one year, one for 
two years, and one for three years. Said commissioners shall 
meet at the office of the town clerk at a day and hour to be 
fixed by said clerk, within ten days after the town meeting, 
l ts °^ Avn * cn ne snaU & VQ eacn commissioner three days' notice, 
for term. when and where said commissioners shall meet to determine 

their respective terms of office. 
Manner of Sec. 8. At such time and place the town clerk shall prepare 

drawing lots. i\ lYee se p ara te pieces of paper, as near alike as practicable ; on 
the first of which shall be written the number "one," on the 
second the number " two," and on the third the number "three," 
and he shall cause them to be folded up alike, as near as practi- 
cable, and deposited in a box; and the persons elected commis- 
Term of office s ^ oners sna ^ severally draw one of the said pieces of paper, and 
determined by the term of office of each such commissioners shall be deter- 
mined by such drawing, and each shall hold his office for the 
number of years corresponding with the number by him drawn. 
xt i „+ „r„„ Sec. 9. If anv person elected a commissioner shall neslect to 

Neglect of com- m J r . t <d # 

mjssioner to attend at the time and place specified m the preceding section, 
draw. an the town clerk shall select some qualified elector of the town to 
1861. draw for said commissioner, in the manner prescribed in the pre- 

ceding section ; and the number drawn by such eleetor shall be 
a lawful determination of the term of office of said commissioner. 

(1) Thenetv constitution, on the subject of abandoning township organization, 
declares as follows : '• And in any county that shall have adopted a township organi- 
zation, the question of continuing the same may be submitted to a vote of the elec- 
tors of such county at a general election, in the manner that now is or may be pro- 
vided bylaw; and if a majority of all the voles cast upon that question shall be 
against township organization, then such organization shall cease in said county; 
and all laws in force in relation to counties not having township organization shall 
immediately take effect and be in force in such county." Art. 10, g 5. 



DIV. V.] AUTHORITY TO SELL AND CONVEY REAL ESTATE. 251 

AUTHORITY OF TOWNS TO SELL AND CONVEY REAL ESTATE. 

Sec. 1. That the legal voters of any town organized under Law* 1 872, 
the township organization law, which owns real estate in its a7»p' Apr. 2, 

corporate capacity, may by the adoption of resolutions to that 
effect, at the time appointed for the transaction of the general LGga] 
business of the town at the annual town meeting, authorize theX° te ™ attowu 

-. , -i -1 n 1 meeting may 

supervisor to sell and convey any such real estate 01 the town authorize 
not deemed necessary for public use, upon such terms and Si e S s estate 
conditions as may be prescribed in such resolutions, and may oftown# 
authorize the proceeds of such sale to be applied to such cor- 
porate purposes as may be deemed expedient. 

Sec. 2. Whenever such sale is so authorized the supervisor Notice of sale 
may sell such real estate, in behalf of the town, at public to be given, 
vendue, to the highest bidder for cash, or upon credit, as he 
may have been directed at the town meeting, after having 
given at least three weeks notice of the time, place and terms 
of such sale, by posting not less than five notices thereof at 
public places within the town, and by causing a copy of such 
notice to be published in some newspaper published within the 
county (1) 

Sec. 3. The supervisor shall have power to make and exe- supervisor 
cute, in behalf of the town, all necessary deeds to carry such powerTo 6 exe- 
sale into effect, and to sign such deeds in his official capacity, cute deed - 
and affix thereto the corporate seal of the town (if any), and 
if the town has no corporate seal, then to affix a scroll to such 
deeds in the place of a seal. Any deed so executed in pur- 
suance of such sale, shall convey to the purchaser all the right 
and title of the town in and to the lands therein described; 
and the recitals in such deed showing the authority of the 
supervisor to make the same, in compliance with the pro- 

(1) Form of Notice of Sale, by Supervisor, of Heal Estate owned by the 

Town. 

Public notice is hereby given that, in pursuance of the authority 

in me vested by a resolution of the legal voters of the town of , 

adopted at the annual town meeting for the transaction of general 

business, held on the day of , A. D. 18—, at , in said 

town, I, A. B., supervisor of said town, and in behalf thereof, will, 

at , on the day of , A. L>. 18—, at o'clock 

M., sell at public vendue, to the highest bidder, for cash 

[or upon credit, as the case may be — if upon credit, stating the 
terms'], the following described real estate belonging to said town, to 
wit [describe the premises']. 

Dated at , this day of . A. D. 18—. 

A. B., 
Supervisor of the town of . 



252 TOWNSHIP ORGANIZATION. [DIV. 



visions of this act, shall be prima facie evidence of the facts 
therein recited, snowing such authority. (1) 

ANIMALS RUNNING AT LARGE. 

v£v?2? m ^ EC \ *" ^ s ^ a ^ ^ e un l aw f u l f° r tn e owner or owners of any 

^s^*/* 11 - 13 ' domestic animals > of the species of horse, mule, ass, cattle, 
^l^—; sheep, goat, or hog, to suffer the same to run at large in any 
Domestic ani- county in this State, after the first day of October, eighteen 
malsrestrained hundred and seventy -two, except as hereinafter provided. 
?87* m Mri!r£ ^ EC " ^' ^J owner or owners violating section one of this 
cd!,p?. 169. act shall, on conviction before any justice of the peace having 

(1) Form of Deed of Conveyance by Town. 

This indenture, made this day of , A. D. 18—, between 

the town of , in the county of and State of Illinois, party of 

the first part, and C. D., of , party of the second part, uitnesseth : 

That, whereas, at the annual town meeting of said town at the time 
appointed for the transaction of the general business of the town, held 

on the day of , A.D. 18 — , at in said town, a resolution was 

adopted by the legal voters of said town, authorizing A. B., the super- 
visor of said town of , to sell and convey for cash [or upon credit, 

as the case may be — if upon credit, stating the terms], all the real estate 
in said resolution, and hereinafter described, the same not being 
deemed necessary for public uses. 

And whereas, the said supervisor, in behalf of said town, did, on 
the ■ day of , A. D. 18 — , at in said town, offer said prem- 
ises for sale at public vendue, to the highest bidder for cash [or as 
the case may be], having first given three weeks public notice of the 
time, place and terms of such sale, by posting five notices thereof at 
public places in said town, and by causing a copy of such notice to 

be published in , a public newspaper published in said county ; 

and whereas, the said party of the second part bid for said premises 

at said sale the sum of dollars, the same being the highest and 

best bid therefor, 

Now, therefore, the said party of the first part, in consideration of 

said sum of dollars duly paid, the receipt whereof is hereby 

acknowledged, has remised, released, sold, conveyed and confirmed, 
and by these presents does remise, release, sell, convey and confirm 

unto the said party of the second part, heirs and assigns forever, 

all the right, title, interest, claim and demand which the said party 
of the first part has in and to the following described lot, piece or 

parcel of land, situate in the county of , and State of Illinois : 

[describe the premises] to have and to hold the same, together with all 
and singular the appurtenances and privileges thereunto belonging, 
or in anywise thereunto appertaining, and all the estate, right, title, 
interest and claim whatever, of the said party of the first part, either 
in law or equity, to the only proper use, benefit and behoof of the 
said party of the second part, heirs and assigns forever. 

In witness whereof, A. B., supervisor of said town of , has 

hereunto set his hand in behalf of said town, and affixed a scroll 
hereto in the place of a seal, said town having no corporate seal, the 
day and year first above written. A. B., [seal.] 

Supervisor of the town of . 



DIV. V.] ANIMALS RUNNING AT LARGE. 2i)o 

jurisdiction, pay a fine not less than three dollars nor more Penalty, 
than ten dollars for each and every offense, to the common 
school fund of the township. Any person who is or may be 
the owner of land, or who has or may have control of the 
same, may take up any domestic animal or animals when mS^akenu'p. 
found near to or upon such land, such animal or animals being 
at large, in violation of section one of this act. The taker 
up of such animal or animals shall, within two days from the 
time of the taking up, make complaint and institute a suit suit, 
under the provisions of this act against the owner or owners 
of such animals, and, if, upon the trial, judgment shall be for 
the people, execution shall issue immediately upon the judg- 
ment, and the animal or animals taken up shall be liable to Animals liable 
levy and sale upon the execution, the same as in other cases, jj£]J? vy and 
anything in the exemption laws of this State to the contrary 
notwithstanding. 

Sec. 3. The county clerk of any county, wherever it may petition to vote 
be unlawful for domestic animals to run at large by virtue of domest^ani- 
this or any special law, on petition of one hundred or more Jt^ r ^e nnins 
voters therein, shall give notice with the election notices of 
the then next suceeding general election in such county, that 
at such election the voters of such county may vote for or 
against domestic animals running at large in such county, or 
any species thereof, to be mentioned in such notices, and sep- 
arate ballot boxes shall be used at said election. Such votes votes how can- 
shall be received and canvassed by the proper judges of elec- vassed " 
tion, and returns made in the same manner as the other elec- 
tion returns, and if a majority of the votes cast on such ques- 
tion is for domestic animals, or any species thereof, running at 
large, it shall be lawful in such county for such domestic ani- 
mals, or species thereof, to run at large. (1) 

Sec. 4. At any succeeding general election, on like peti- Vote may be 
tion and notice, the voters of such counties electing to allow general eiec- 

tion. 

(1) Form of Petition to vote for or against Domestic Animals running at 

large in a County. 
To the County Clerk of the County of , in the State of Illinois : 

The undersigned, voters of said county, do hereby petition you to 
give notice with the general election notices of the next succeeding 
election in said county that at said election the voters of said county 
may vote for or against domestic animals running at large in said 
county [or any species thereof, naming it, as the case may be~\. 

Dated at — , this day of A. D. 18— 

The proper method for the county clerk to give notice that such question will be 
submitted to a vote of the people would be for him to insert in the notice of the 
general election the following words. "And that at such election the voters of said 
county may vote for or against domestic animals running at large in said county 
[or any species thereof, naming it, as the case may be)." 

See ante, p. — , note 2. 




254 TOWNSHIP ORGANIZATION. [oiV. V. 

domestic animals to run at large, may vote to rescind such 
former election, and to come under the provisions of this law 
where no such vote is taken. 

Sec. 5. It shall be unlawful for domestic animals, or any 
species thereof, to run at large, in any town, city or precinct 
in this State, where such animals were lawfully restrained 
SYestmfnedfrom running at large before or at the time the act to which 
is?? too a keffect. tfl ^ s * s an amendment, took effect, until permitted to do so by 
the lawful authority of such town. or city, or by a majority- 
vote of such precinct. 

Act 1873, 

Myers' Cil., 

App 2 - G ipr. u, ^ E0 * *■ ^ iat * n an y count J ^ n tn i s State which has adopted 
1873. township organization, or which may hereafter adopt township 

t v— """^ . organization, and where domestic animals are not prohibited 
question of ° n from running at large by law, that, on petition of not less than 
SoSesUc Dg twenty legal voters of any town to the town clerk, it shall be 
animals to run the duty of the town clerk to give notice, with the notice of the 
submitted at annual town meeting, that the question of voting for and 
BpeSai town against domestic animals or any species of the same running at 
meeting. large, will be submitted to the legal votes of such town at such 

^ „ x -u town meeting ; which vote shall be by ballot, which ballots 

Ballots, how -i-i-i t • i •,, -i • -T -i • i 

printed or snail be printed or written, or partly written and partly printed, 
on the ballots voted for town officers ; and if a majority of the 
votes cast at such town meeting shall be against domestic 
animals or any species thereof from running at large, then it 
shall be unlawful for such animals to run at large in such town : 
Proviso. Provided, that if sufficient time does not elapse after this act 

takes effect to give the required notices for the question to be 
voted on at the annual town meeting in April, 1873, the town 
special town clerk of any such town shall, on a like petition, call a special 
meeting. town meeting for that purpose, notice of which special town 

meeting shall be given for the length of time and in the man- 
ner for the annual town meetings. (1) 
Majority vote Sec. 2. In case a majority of votes at such annual or special 
?Jnmng at malS town meeting is against domestic animals running at large, 

large. 

(1) Form of Petition to vote for or against Domestic Animals running at 
large in a Town. 

To the Town Clerk' of the town of , in the County of , in 

the State of Illinois : 
The undersigned, legal voters of said town, do hereby petition you to 
give notice with the notice of the annual town meeting of said 
town, that the question of voting for and against domestic animals 
lor any species thereof, naming it, as the case mag be~\ running at 
large, will be submitted to the legal voters of said town at such town 
meeting. 



written. 



DIV. V.] MALE ANIMALS RUNNING AT LARGE. 255 

the electors may provide by a vote of the majority at such 
meeting, to be ascertained in some convenient manner : 

First — To establish and maintain a pound or pounds at pounds, 
such places within the town as may be deemed necessary and 
convenient. When any pound is erected, it shall be under the 
care and direction of a pound master. 

Second — To determine the number of pound masters, to pound master, 
prescribe their duties, and choose the same in such manner 
as they may determin 

Third — To authorize the distraining, impounding and sale Distraining. 
of cattle, horses, mules, asses, swine, sheep or goats, for penal- JS§°aieof g 
ties incurred and cost of procedings : Provided, that the sale cattle > et(> - 
of animals distrained or impounded shall be conducted, as Pr0VLS0 * 
nearly as may be, according to the law regulating sales of prop- 
erty by constables under execution : And provided, also, the Furtnerproviso 
owners of such animals shall have the right to redeem the same 
from the purchaser thereof, at any time within three months 
from the date of the same, by paying the amount of the pur- 
chaser's bid, with reasonable costs for their keeping, and interest 
on the amount bid, at the rate of ten per cent, per annum. 

Fourth — To apply all penalties, when collected, in such Penalties, 
manner as may be deemed most to the interest of the town. how a ^ hed - 

MALE ANIMALS RUNNING AT LARGE. 

Sec. 1. That it shall be unlawfulfor any male animal, viz. : pg^Iis. 872 * 
stallion, jackass, bull, ram or boar, to run at large in this State. £ |> 1 »g* 7 J Iarcl1 

Sec. 2. That whenever any animal, as set forth in the first 'v^^^^- 
section of this act, shall be allowed, by its owner or owners, The running at 
keeper or keepers, to run at large or go unrestrained, it shall annuals ^roni- 
be lawful for any person to restrain the same by proper con- blted * 
finement and care; and the person so restraining shall imme- 
diately advertise such animal by posting up in three of the 
most public places in the township where the person so up'such ani- mg 
restraining shall reside, and the owner or owners, keeper or ^is^em?" 
keepers of such animal shall be required to pay to the person 
so restraining, five dollars for such restraint, seventy -five receive 95 for 
cents each for the three advertisements so posted up, and sev- and^JcS 
enty- five cents per diem for their maintenance while in his Jostfnl^ucrT 
care ; upon the payment of which, and the proper proof of animal. 

The proper method for the town clerk to give notice that such question will be 
submitted at the annual town meeting, or any special meeting called for that purpose, 
would be for him to insert in the notice of such meeting, the following words : "And 
that the question of voting for and against domestic animals (or any species of the 
name, naming it, as the cane may be), running at large, will be submitted to the legal 
voters of said town, at such town meeting." 

For form of notice of town meeting see ante, p. — , note 2. 



256 TOWNSHIP ORGANIZATION. [dIV. V. 

ownership or agency for such ownership, the person so 
restraining shall deliver up such animal, unless as provided in 
the third section of this act. 
Additional Sec. 3. Any owners or keepers of animals, as set forth in 

vfoittionof the tne fi rsfc sec ti° n of this act, who shall allow such animal to run 
sec. 1 of this a t large, or go unrestrained, in addition to the foregoing, as 
set forth in the second section of this act, upon complaint of 
any person or persons, to any justice of the peace or town 
officer having jurisdiction, such owner or owners, keeper or 
keepers shall be deemed guilty of trespass, and shall be 
mulcted in a fine of not less than five dollars nor more than 
fifty dollars for each and every such offense. And in addition 
to the foregoing, every such owner or owners, keeper or keep- 
ers of such male animal, as set forth in the first section of this 
act, who shall allow such male animals to go unrestrained, or 
run at large, shall be deemed liable for all damages that may 
accrue to others, whether to their persons or their property, as 
stock-breeders or otherwise, caused or brought about by the 
unrestraint or running at large of said male animals; and 
damage so accrued shall be recoverable by law in an action for 
damages in any court having jurisdiction of the same, 
when such re- Sec. 4. If such male animal shall remain in the possession 
manshaii be ^ °^ *^e P erson restraining it for thirty days from the time of 
deemed an advertising it, it shall be deemed an estray, and the laws of 
this State governing estray s shall be applicable to it. 



CANADA THISTLES. 

i.aws 1872, Sec. 1. There may be appointed by the board of town 
ajps*- March auditors in counties under township organization, and by the 
*'_ * . _; county commissioners in counties not under township organiza- 
commissioner lion, for each township or election precinct, and by the city 
thi?ies da council of any city, or by the president and trustees of any 
town or village, as the case may be, some competent person, to 
be styled " Commissioner of Canada Thistles," who shall take the 
oath required of township or precinct officers, and shall hold his 
office for the term of three years, and until his successor is 
Compensation, appointed and qualified ; and he shall receive for his compensa- 
tion the sum of two dollars a day, for each full day necessarily 
spent in the performance of his duty, to be verified by affidavit. 
The board of appointment may, at any time, for good cause, 
remove the commissioner from office, and appoint his successor, 
to serve the remaining portion of his time. 
Duty of the Sec. 2. The commissioner of Canada thistles shall diligently 

commissioner. j nc ^ u j re concerning the introduction and existence of Canada 



WV. V.] CANADA THISTLES. 257 

thistles in his township or precinct, and if any are found grow- 
ing therein he shall take .charge of all such growing in the 
highway and on uninclosed lands, and take care that they do 
not go to seed, or otherwise spread ; and he shall carefully seek 
and learn, so far as practicable, the best methods for their 
destruction, and he shall persistently apply, in proper time, 
such remedy or treatment as he shall deem best calculated to 
prevent their spread and to eradicate the same. 

Sec. 3. In case said thistles are found growing on inclosed commissioner 
lands, the commissioner shall advise with the owner, agent or o° V m* onlnd. 
occupant on their treatment, and if the said commissioner shall 
deem it necessary and expedient for him to fully control the 
same, he shall agree with the owner, agent or occupant on the 
boundaries of the tract so infected, which it is expedient for 
him to control, and he shall mark the same by stakes or by 
fence, if thought best ; and thereafter such infected tract, or so 
much as from time to time remains infected, shall be managed 
and controlled by the said commissioner, for^ the purpose of 
destroying the said thistles, and so long as it may be necessary to 
complete the work. In case the commissioner and the owner, In case of dis- 

&,-°T6CII16Ilt« 

agent or occupant of the land cannot agree, as regards the 
propriety of the commissioner controling such tract, or of the 
boundaries of the same, then the commissioner shall proceed to 
stake out or mark such boundries as he deems proper, and file 
a copy of his decision with the town clerk, or in counties not 
under township organization with the county clerk. The 
owner, agent or occupant of the land may, if he feels aggrieved, 
appeal from such decision of the commissioner, without bonds, A P£ eal «. . , 

*.*, . t , . *» 1 • l •» -i without bonds. 

within twenty days, to the commissioners of highways of the 
town, or to the county commissioners, as the case may be, who 
shall proceed to view the same, and to hear the reasons for and 
against the decision of the commissioner ; and a majority of 
such board of appeal shall decide as to the propriety of taking 
possession of the tract alleged to be infected, and if they decide 
to take such possession, what shall constitute the boundaries of 
the same, and shall direct said commissioner to exterminate 
said thistles (which are hereby declared a public nuisance), 
without unnecessarily depriving the owner of the land of any 
legitimate use and enjoyment of the same.(l) 



(1) Appeal from Decision of Commissioner of Canada Tic 
To I. B., I. J. and D. I., Commissioners of Highways of the Town of 

, in the County of [or County Commissioners, as the 

case may be~\. 
The undersigned A. B., owner [or agent or occupant, as the case may 
be~\, of the hereinafter described premises, feeling himself aggrieved 



TOWNSHIP ORGANIZATION. [dIV. 



commissioner Sec. 4. The commissioner shall apply the best known means, 

ihfiies! cate an d use the utmost diligence, in eradicating the thistles ; but he 

shall not have power to expend in work or materials more than 

one hundred dollars on any one infected tract, without the 

advice and consent, in writing, of the supervisor of the town, 

or of the county commissioners, as the case may be. 

commissioner Sec. 5. It shall be the duty of the commissioner to prose- 

io prosecute. cute or complain to the proper authorities of any person or 

corporation who may violate any law now existing, or which 

may hereafter be passed, on the subject of Canada thistles. 

Report of the Sec. 6. The commissioner shall, annually, before the first 

commissioner. c ] av f November, make a written report to the supervisor of 

the town, or to the county commissioners, as the case may be 

— which report shall be filed with the town clerk, or, in 

counties not under township organization, with the county 

clerk. The report made to the supervisor shall be publicly 

read at the annual town meeting. Said report shall state — 

contents of the First — Whether there are or not any Canada thistles grow- 

report. j n g j n ^q town or precinct. 

Second — If any are growing, where and how many, and 
when and how introduced. 

Third — A detailed statement of his treatment of each in- 
fected tract, with cost and result. 



Fourth — He shall report such other matters as may be 
required of him by the board of town auditors, or by the 
county commissioners. 

Fifth — He shall state his views on their further treatment, 
and make such suggestions and recommendations as he may 
deem proper and useful. 

And he shall also forward a copy of said report to the secre- 
tary of the State board of agriculture, who shall collate and 
report the same to the governor by the first day of December 
of each year.(l) 

by the decision of the commissioner of Canada thistles, filed with the 
town clerk [or with the county clerk, as the case may be], on the 
day of A. D. 187 — , does hereby appeal to and sub- 
mit the matter in controversy to your honorable body according to 
the statute in such cases made and provided. 

The grounds upon which this appeal is made are [here briefly state 
the grounds of appeal and description of land]. 

Dated this day of A. D. 

(1) Form of Report of the Commissioner of Canada Thistles. 

To A. B., Supervisor of the Town of , in the County of [or 

to the County Commissioners, as the case may be.] 
The undersigned, commissioner of Canada thistles for the town of 
, said county, would report that said thistles are now growing in 



DIV. V.] FEES AND COMPENSATION OF TOWN OFFICER?. 259 



Sec. V. The board of town auditors, and the county com- Accounts of 
missionera in counties not under township organization, s hali conuni8aU)ncr ' 
audit the accounts of the commissioner, both for his services whosballaud:t 
and for the money expended or labor employed by him ; and 
they shall provide for their payment as they now do fer other 
town or county expenses. 

Sec. 8. The boards of supervisors and county commissioners Appropriation 

i ■ . • n . l , ■ i • by counties. 

may moke appropriations irom the county treasury to aid in 
destroying the Canada thistle in any one or more towns or pre- 
cincts of the county ; and in case they deem it expedient, they 
may assume control over any one tract or of all the Canada 
thistles in the county, and make such provision as they may 
deem necessary, and impose penalties, not exceeding one hun- 
dred dollars for each offense, for a violation of any provisions, 
by-laws or regulations made by them on this subject, to be 
sued for by the commissioner, in the name and for the use of 
the proper county, before any justice of the peace having juris- 
diction. Whenever the board of supervisors or county commis- 
sioners shall decide to assume control, and so long as they 
exercise it,* their jurisdiction shall be superior to that of the 
commissioner. 

FEES AND COMPENSATION OF TOWN OFFICERS. 

Sec. 36. The following named town officers shall be entitled i. aTVS ^72. 
to compensation at the following rates for each day necessarily Ap'p^Mar. 19, 
devoted by them to the services of the town, in the duties of 1ST ~' 
their respective offices : The town clerk, supervisor and over- „ Y T „ 

£ . » ,, . ' r . , , ,, Compensation 

seer ot the poor, shall receive tor their services, two dollars of town officers. 
per day, when attending to town business out of the town ; 
one dollar for + own business in their town : Provided, that the town c°erk*s 
town clerk shall receive fees for the following, and not a per fees - 
diem : For serving notices of election upon town officers as 
required by law to be filed in his office twenty -five cents each; 
for filing any paper required by law to be filed in his office, 
five cents each. For posting up notices required by law 

said town [or as the case may be'], on the farm of J. D. [describe its loca- 
ting, and that the same were introduced about by ; that 

his treatment of each infected tract of land, with the cost and result 
has been as follows [state particulars'] : and that he believes said this- 
tles should be treated for another year in the same way, by which time 
they will probably be entirely eradicated. Said commissioner would 
suggest and recommend that, etc. 

C. D., 

Commissioner of Canada Thistles for the town of . 

Dated this day of , A.D. 18—. 



260 TOWNSHIP ORGANIZATION. [dIY. V. 

twenty - five cents each ; for recording any order or instru- 
ments of writing authorized by law, six cents for each one 
hundred words ; for copying any record in his office, and cer- 
tifying to the same six cents for every one hundred words, to 
be paid by the person applying for the same ; for copying by 
law for posting or publication, six cents each one hundred 
Town assessor, words, to be paid for by the town. The town assessor shall 
receive for his services as assessor two dollars and fifty cents 
Jowni S of a 5o,ooo P er ^J : Provided, that in towns of fifty thousand inhabit- 
inhabitants' a nts and upwards, in counties of the third class, the assessor 
Pound masters, shall receive five dollars per day. The pound master shall 
be allowed the following fees for his services, to wit : For tak- 
ing into the pound and discharging therefrom every horse, 
ass or mule, and all neat cattle, ten cents each ; for every 
sheep or lamb three cents each ; and for every hog, large or 
small, five cents (each). 
Board of ap- The officers composing the board of appointment in case of 
pomtment. vacanC y 5 ^hen they shall meet for that purpose, and the offi- 
auditors. cers composing the board of town auditors, shall each be 

entitled to one dollar a day for their services. 
No fee for ad- No justice of the peace or town officer shall be entitled to 
oath of office, any fee or compensation from any individual elected or chosen 
to a town office, for administering to him the oath of office, 
commission of Each town or district collector shall be allowed a commission 
coiiector dlstrict of two per cent on all moneys collected by him, to be paid 
Proviso as to out of the respective funds collected : Provided, that in any 
compensation, case where the compensation so allowed shall be insufficient, 
the town or county board may allow an additional compensa- 
tion or per diem in lien of other or greater commissions, in 
which case said additional compensation shall be paid out of 
Further pro- the town or county treasury as the case may require : And 
Ve% of lommis- P rov ided fitrther, that all excess of commissions and fees over 
sions over si5oo fifteen hundred dollars shall be paid into the town or district 
treasury. 



DIV. VI.] ROADS AND BRIDGES. 261 



DIVISION VI. 

ROADS AND BRIDGES IN COUNTIES UNDER 
TOWNSHIP ORGANIZATION. 

PUBLIC HIGHWAYS DEFINED. 

Sec. 1. That all roads within this State, which have been Myers' ed?, 
laid out in pursuance of any law in this State, or of the late fc. Apr. 11 
territory of Illinois, or which have been established by dccli- ,_ . * _, 
cation or user for twenty years, and which have not been p ub i ic high- 
vacated in pursuance of law, are hereby declared to be public wa >* s defined - 
highways. 

LAW OF THE ROAD. 

Sec. 2. "Whenever any persons, traveling with any car- carriages to 
riages, shall meet on any turnpike road or public highway inSjJht. 
this State, the persons so meeting shall seasonably turn their 
carriages to the right of the centre of the road, so as to per- 
mit each carriage to pass without interfering or interrupting, 
under the penalty of five dollars for every neglect or offense, Penalty, 
to be'recovered by the party injured: Provided, this section 
shall not be construed to applv to anv case, unless some injury ^ ot apply un- 

i ii i ii- n i less injury. 

to persons or property shall occur by the driver or the car- 
riage or wagon refusing to turn to the right of the beaten 
track ; nor shall it be construed to extend to a case where it 
is impracticable, from the nature of the ground, for the driver 
of the carriage or wagon to turn to the right of the beaten 
track. (1) 

(1) TJie Taw of the road requiring travelers meeting each other on the highways 
to turn to the right of the middle of the traveled part of the road, prescribes a gen- 
eral rule to avoid injuries, but does not undertake to define fully the duties of trav- 
elers under all possible circumstances. The statute will not justify a man who 
remains stubbornly and doggedly upon the right of the traveled part of the high- 
way, and thereby wantonly produces a collision, when a slight change of position 
would have prevented it. O'Maley v. Dorn, 7 Wis. R., 236. 

Nor does the law requiring travelers seasonably to drive to the right, apply where 
one vehicle is passing along one street and another is turning into it from a cross 
road. Lovejoy v. Dolan, 10 Cush R., (Mass.) 495. 

The rule only applies to, and regulates the conduct of travelers as between'them- 
selves. Where a light vehicle can pass with safety to theUeft of a heavily loaded 
team, it is their duty to give way and leave the choice to the more unwieldy vehicle. 
Grier v. Sampson, 27 Penn. State R., 183. 

A party having before him the whole road, free from'obstructions, and having no 
notice of any carriage behind him in season to stop or change his course, is at lib- 
erty to travel on any part of the road that he pleases. Foster v. Goddard, 40 Maine 
R., 64. 

Navigable rivers and public streams are pxibh'c highways, and every person has 
an equal right to a reasonable use of them as such. "Davis v. Winslow, 51 Maine It., 
264. 



2§2 



ROADS AXD BRIDGES. 



[DIV. VI. 



Drunken driv- 
er forbidden. 



Sec. 3. Iso person owning any carriage, 
ing upon any road in this State, for the conveyance of 



running or travel- 



pas- 



sengers, shall employ, or continue in employment, any person 
to drive such carriage who is addicted to drunkenness, or the 
excessive use of spirituous liquors, and if any such owner 
shall violate the provisions of this section, after he shall have 
had notice and reasonable proof that such driver is addicted 
Penalty. for to drunkenness, he shall forfeit at the rate of five dollars per 
,mg nm ^ a y f or a rj the time during which he shall thereafter have kept 
any such driver in his employment. 
Drunken driv Sec. 4. If any driver, whilst actually employed in driving 
£iissed C dis " an y sucn carriage, shall be guilty of intoxication to such a 
degree as to endanger the safety of the passengers in the 
carriage, it shall be the duty of the owner of such carriage, 
en receiving written notice of the fact, signed by any one of 
said passengers, and certified by him, on oath, forthwith to 
discharge such driver from his employment ; and every such 
owner who shall retain or have in his employ, within three 
months after the receipt of such notice, any driver who shall 
have been so intoxicated, shall forfeit at the rate of five dol- 
lars per day for the time during which he shall keep any such 
driver in his employment after receiving such notice. 

Sec. 5. No person driving any carriage upon any turnpike 
road or public highway within this State, with or without pas- 
sengers therein, shall run his horses or carriage (or permit the 
same to run) upon any occasion, or for any purpose whatever ; 
and every person who shall offend against the provisions of 
this section, shall be deemed guilty of a misdemeanor, and on 
conviction thereof, shall be fined not exceeding ten dollars, or 
imprisoned not exceeding sixty days, at the discretion of the 
court. 

Sec. 6. It shall not be lawful for the driver of any carriage 
used for the purpose of conveying passengers for hire, to leave 
the horses attached thereto while passengers remain therein, 
without first making such horses fast with a sufficient halter, 
rope or chain, or by placing the lines in the hands of some 
other person, so as to prevent their running ; and if any such 
driver shall offend against the provisions of this section, he 
shall forfeit the sum of twenty dollars, to be recovered by 
action, to be commenced within six months ; and unless the 
amount of such recovery be paid forthwith, execution shall be 
immediately issued therefor. 

Sec. 7. The owners of every carriage running upon any 
turnpike road or public highway, for the conveyance of passen- 
gers, shall be liable, jointly and severally, to the party injured, 



Penalty for re- 
taining him. 



Running 
horses forbid- 
den. 



Horses not to 
be ]cft un- 
hitched. 



Penalty. 



Owner liable 
for damages. 



DIV. VI.] COMMISSIONERS OF HIGHWAYS. 2G3 

in all cases, for all injuries and damages done by any person 

in the employment of such owners as a driver, while driving 

such carriage, to any person, or to the property of any person ; 

and that, whenever the act occasioning such injury or damage 

be willful, negligent or otherwise, in the same manner that 

such driver would be liable. Any driver of any mail stage 

coach, or any other vehicle for the conveyance of passengers, J^™ 1 ^ d f r ° v f er . 

willfully offending againat the provisions of this act, shall be 

deemed guilty of a misdemeanor, and on conviction thereof, 

shall be imprisoned not exceeding four months, or fined not 

exceeding three hundred dollars. 

Sec. 8. The term a carriage," as used in this act, shall be Meaning of 
construed to include stage coaches, wagons, carts, sleighs, sleds camage - 
and every other carriage or vehicle used for the transportation 
of passengers and goods, or either of them. 

Sec. 9. Nothing contained in this act shall interfere with Hackney coach 
or aifect any law concerning hackney coaches or carriages in changed, 
any of the cities of this State, nor interfere with nor affect 
the laws or ordinances of any such city for the licensing or 
regulating such coaches or carriages. Justices of the peace Justices' juris- 
shall have jurisdiction in all cases arising under this act, where 
the penalty does not exceed their jurisdiction. 

DUTY OF COMMISSIONERS OF HIGHWAYS. 



com- 
i:ui sioners of 
ays. 



Sec. 10. The commissioners of highways in the several Powers of 

o «/ mission ^^ 

towns in this State shall have the care and superintendence of highw 
highways and bridges therein, and it shall be their duty :(1) 

(1) TJie construction of roads and bridges, under our system, is for the most 
part, accomplished through our township organization ; the counties contributing 
towards the construction of bridges, in cases where the expense would be too oner- 
ous to be wholly borne by the towns in which they are situated. The statute, in 
express terms, gives to commissioners of highways, when elected, the care and 
superintendence of the highways and bridges of the town, and confers upon them 
all powers requisite for the execution of their trust. They are in no way responsible 
to the town, but are themselves a species of quasi corporation, with power to sue and 
be sued, having legal succession and deriving their authority, not through the town, 
but directly from the statute. The towns have no power to give the slightest direc- 
tion or instruction to these officers as to the performance of their duties. Commis 
sioners oj Mies v. Martin, 4 Mich. R., 557. Commissioners, etc., v. Baumqarten, 41 111 
K, 254. 

Commissioners of highways cannot, by virtue of their office, bring suits 
to recover damages against individuals or corporations for illegally entering upon 
ami taking possession of the public highways or bridges of their town. Neither 
have the electors of a town, at town meeting, power, by resolution or otherwise, to 
authorize such commissioners to bring an action in their own names, or in their 
name of office, for such injuries. Such a resolution, if passed at town meeting, 
would not bind the town. Thus, where the electors of a town, at town meeting, 
directed the commissioners of highways to prosecute a turnpike company for enter- 
ing upon and taking possession of a public highway and bridge in that town, and 
the commissioners accordingly brought a suit for the cause of action in their names 
as commissioners, and had judgment against them. Held, that they could not sus- 
tain an action against the town to be reimbursed their costs and expenses, or the 
costs recovered against them in that suit. The electors of a town cannot bind the 
town, except in manner prescribed by law. Cornell v. Guilford, 1 Denio R., 510. See 
ante, Art. 2, Sec. 2, p. 195, and note. 



264 



ROADS AND BRIDGES. 



[DIV. VI. 



Repairing of First — To give directions for the repairing of roads and 

bridged bridges in their respective towns, and to cause the building of 

bridges when the public interests or necessity may require it.(l) 



Nor have towns the power, at town meeting, to direct the commissioners to remove 
a fence from a highway. Gray et al. v. Waterman, 40 111. R., 523. 

Where commissioners of highways make themselves parties to a proceeding to 
reverse a decision of the supervisors, by writ of certiorari, and are unsuccessful, a 
judgment against them for cost is proper. If they were acting in behalf of the 
town, they should have appeared in its name and not in tlieir own. Commissioners, 
etc., of Soaora v. Supervisors oj Carthage, etc., et al., 27 111. R., 141. 

But in awarding a peremptory writ of mandamus to compel the commissioners to 
lay out a road which had been ordered on appeal to supervisors, it is error to render 
judgment for costs against them. Costs in such case should be awarded against the 
town. Commissioners of Highways v. The People ex rcl., 38 111. R., 347. 

Commissioners of highways, though not expressly authorized by statute, have the 
power to sue when necessary to the performance of their duty. 18 Johns R., 407 ; 

1 Cowen R., 260 ; 3 Wend, R., Iy3 : 7 Id., 181 ; 19 Id., 50. They cannot maintain an 
action in their official title alone; they must sue in their individual names, adding 

their official title, as A., B. and C, "commissioners of highways of town of ." 

4 Hill, 136; 5 Id., 215; Denio R., 510. And commissioners who advance their own 
money to pay the claim of an attorney for such services, and take an assignment of 
the claim, may recover the amount from the town. Danlzx. Dantz,4A Barb. R., 
(X. Y.) 459. 

Commissioners of highways are likewise drainage commissioners by virtue of 
their office. See post, p. — . 

(1) The construction and improvement of public roads tends to mark dis- 
tinctly the progress of society. This is a subject which has claimed the attention of 
all prosperous and well regulated communities in all ages of the world. In Eng- 
land, every parish is bound of common right to keep the high roads that pass 
through them in good and sufficient repair; unless by reason of the tenure of lands, 
or otherwise, this care is consigned to some particular private person. From this 
burthen no man was exempt by the ancient laws of that country, whatever other 
immunities he might enjoy; this being a part of the three burdens to which every 
man's estate was subject. For the most part the care of roads, only, seems to be 
left to parishes, that of bridges devolving mostly upon counties at large By Stat. 22 
Hen. VIII, chap. 5, if the parish neglected those repairs, they might, formerlv, as 
now, be indicted for such neglect: but it was not then incumbent on any particular 
officer to call the parish together and set them upon this work; for which reason, by 
the stat. 2 and 3 Ph. and M., chap. 8, surveyors of highways were ordered to be 
chosen in every parish. See 1 Black. Com., 358. Like officers in the United States 
are designated by different appellations, as surveyors, commissioners, overseers, 
supervisors, etc. 

Concerning the duties of commissioners of highways in keeping roads in 
repair, Chancellor Kent says ; This seems to be a general duty, applicable at all times 
and in all places ; yet when we come to read the details of their duty, we perceive 
it does not exist absolutely, but arises only when the commissioners have money in 
hand from forfeitures and penalties, or which have been paid over to them under 
the direction of the supervisors. 17 Johns, 452. See also to the same effect, Garling- 
house v. Jacobs 29 N. Y. R. (2 Tiffany). 297, Davis J. dissenting. When commissioners 
have not sufficient funds for all purposes, they may exercise discretion as to which 
of the bridges in the town they will undertake to repair, They will be presumed 
to have exercised that discretion in good faith, and cannot be made responsible, in 
a, civil action, for its exercise. Garlinghouse v. Jacobs, 29 N. Y. R. (2 Tiffany), 297. 
They have power to buy, at the expense of the town, all necessary timber, etc., for 
repairing roads and bridges within their jurisdiction. TT 'ells v. Goffslown, 16 N Y 
R.. 53. 

The powers of commissioners of highways are co-extensive with the territory 
included in the public way, and they may work and improve every part and parcel 
of it at pleasure, being only responsible for a wanton or malicious injury to the 
rights of the adjacent owners. In villages or other thickly settled portions, where 
their powers are not superseded by acts of incorporation, or otherwise abridged, 
they may make reasonable and suitable provisions for walks or passways for foot 
passengers at the sides of the streets or highways. Graves & While v. Otis and olJteis, 

2 Hill. R., 466. 

Navigable rivers and public streams are public highways, and every person has an 
equal right to a reasonable use of them as such. Davis v. Winslow, 51 Maine K,, 264. 

Uridges.— It is ihe duty of a town to build bridges over streams within its limits. 
This being so. the town will be responsible if they make such a structure as will 
obstruct the free navigation of the stream. Town of Harlem v. Emmert, 41 111. R., 
320. But the right of a town to build a bridge over a river is co-extensive with the 
right to navigate it, and a bridge constructed on the most approved plan, at the 
proper place, and with sufficient channel between the piers, over any of our navi- 
gable waters, can not be held to be a material obstruction to the navigation, if it 
appear, that in ordinary times, with ordinary wind and water, the draw can be 



. VI.] COMMISSIONERS OF HIGHWAYS. 26' 

Second. — To lay and establish roads, to regulate the roads Establish and 
already laid out, and to alter or vacate such roads, as they or alter roads - 
a majority of them shall deem proper, as hereinafter pro- 
vided. (1) 

safely passed, and that no better structure could be erected for the purpose designed, 
with the amount of outlay demanded for such undertaking. There is no restriction 
iu the ordinance of 1787, if it still be in force, on the power of the State to use the 
most approved artificial means for crossing navigable waters within the State; it 
only prohibits their obstruction, and the imposition of any tax or duty on their 
navigation. III. Ii. Packet Co. v. Peoria Bridge Association, 38 111. R., 468. 

The feet that a town has expended money and labor on a road, and included it in 
the rate bills of the highway surveyors, as a public road on which highway taxes 
are to be expended, andhas left it open for public travel, and all as a common high- 
way, tends to prove that the town has adopted it as a highway, therefore a bridge 
on said highway, necessary to connect the portions of it on each side of the bridge, 
was also adopted. Folsom v. UndetU'l, 36 Vt. R., 580. 

Municipal corporations, which, are those known as cities and villages, where 
their charters provide ample means for keeping their streets, bridges and sidewalks 
in repair, are obliged to do so ; and are liable for damages resulting in case of 
neglect. . Davenport v. Ruckman, 10 Boswell R. (N. Y.), 20; Browning v. City of Spring- 
field, 17 111. It., 143; City of Joliet v. Verley, 35 111. R., 58. 

If a city authorized to construct a highway in a particular manner, but does it in 
a different one, it will be answerable in damages to a party sustaining injury upon 
it, as much as though it had not exceeded or deviated from its authority. It will be 
liable for the act of Its officers. City of Pekin v. Newell, 26 111. R., 320. 

A city is not liable for damages resulting from the proper exercise of authority iu 
permitting railroad tracks to be laid in the streets, or in raising the grade of streets. 
Murphy v. City of Chicago, 29 111. R., 279. 

The fact that a village road has not been repaired by the corporate authorities, 
may be evidence tending to show that the corporation does not regard it as a 
highway. This -will not be the case, however, if it appears that, from the natnre of 
the ground, the road had needed no repairs. Town of Lewiston v. Proctor, 27 111. 
R., 414. 

Cities and towns may acquire the title to streets by conveyance, dedication, pre- 
scription, or by a record of the town plat. But the ground for streets should be 
properly indicated on the town plats, and other requisitions of the statute should be 
complied with, to enable the city or town, and others, to enforce the opening of 
such streets. City of Bellville et. at. v. Stookey, 23 111. R., 441. 

Towns are not liable, either by the common law or under any statute in this 
State, to a private action for damages occasioned by the neglect of the town author- 
ities to keep their public highways in order; in respect to that character of liability, 
there is no difference between the authorities of counties, and their powers and 
duties in regard to public highways, and towns established by law as civil divisions 
of counties, merely, and the doctrine of the case of Hedges v. The County of Madison, 
1 Gilm., 567. declaring that counties are not liable to such private actions, applies to 
towns of that description. Town of Waltham v. Kemper, 55 111. R., 346. 

(1) A town cannot by vote, atitliorize or compel the commissioners of high- 
ways to lay out, alter or vacate a particular town wav or public road; their 
duty being expressly pointed out by law, and they can only act in obedience to its 
provisions. Kecnv. Stetson, 5 Pick. R., 492. For duty of commissioners in this respect, 
see post, Sec. 51. 

The survey and plat of a public road is evidence of its location, but is not 
conclusive ; but like the field notes of the government surveys, parol evidence may 
be received to show that the road was actuallyl ocated differently from the calls in 
the survey of the road. Hiner v. The People, 34 111. R., 297. 

Parol evidence is admissible to show the existence of a public road. Brown v. 
Jefferson, 16 Iowa R., 339. As well as its location. Eyman v. The People, 1 Gilm R., 4; 
Nealy v. Brown, Id., 10. 

The inference from evidence tending to show that a way over a man's land is a 
public road may be rebutted by evidence of non-user for more than twenty years. 
Eurgwynv. Lockhart, 1 Wins. R. (N. C.) No. 1.269. 

Where the public have ceased to travel a road, and have acquired another 
which accomodates public travel, an abandonment of the first road may be pre- 
sumed. Grube v. Nichols, 36 111. R., 93. 

Where ground upon which a highway was laid out, or which was dedicated for 
that purpose, has been in the open and exclusive adverse possession of the owner 
of the land for twenty years, and a complete non-user of the easement by the pub- 
lic during that time, an extinguishment will be presumed. City of Peoria v. John- 
ston, 56 111., 45. 

A. road, to which the public can have no access by a highway, cannot in the 
nature of things be public, and at most, would serve only the purpose of private 
convenience. Stale v. Price, 27 Md. R., 449. 

It is an unsettled question in New York whether a road open at one end only, 



-36 ROADS AXD BRIDGES. [DIV. VI. 



Describe roads Third — To cause such roads used as highways as have 

already laid ^ eeR j^j Qut ^ or dedicated to public use, but not sufficiently 

described, and such as have been used for twenty years but not 

recorded, to be ascertained, described and entered of record 

in the town clerk's office.(l) 

that is where but one end connects with a highway— technically termed a cul de sac 
— is a public highway. Hickok v. Platsburgh. 41 Barb. R., (N. Y.) 130., 

But held in Maryland, where commissioners had authority to lay out a road if in 
their opinion it would conduce to the advantage and convenience of the public, 
a road laid out by them would be a public road, even if it did not connect with 
another highway. State v. Price, 21 Md. R., 449. 

The supreme court of Illinois sustained a highway which the record showed to 
be a cul de sac. Commissioners of Highways of Lyons v. Ihe People ex rel., 38 111. R., 
347. 

The title of the owner of land bounding upon a highway, is presumed to 
extend to the center of the way. Rice v. Worcester, 17 Gray It., (Mass.) 283. 

But this will be rebutted by a deed showing to the contrary. Smith v. Slocum, 11 
Gray R., (Mass.) 280. 

Plank roads are undoubtedly- public highways, and different from common 
highways in the mode of construction, and the taking of tolls, and on the payment 
of the latter, travelers have the same right to use them as they have to use other 
highways. And where the company forfeit their charter, or abandon it, or suffer 
the road to so become out of repair so as to amount, to an abandonment, the right of 
way of the company ceases, and the road becomes a common highway. Crcig.v. 
The People ex rel., 47 111. R., 488. 

The common law writ of certiorari is the proper mode of proceeding where 
it is sought to qnestion the jurisdiction of commissioners of highways, and regular- 
ity of their proceedings inlaying out and establishing a highway. Commissioners 
v. Harper, 38 111. R., 104. And it lies to bring up the record of proceedings in laying 
out a road by supervisors on appeal. Town of Winfield v. Moffatt et al., 42111. R., 47. 

(1) Form of Order of Commissioners of Highways for ascertaining a road 
imperfectly described or not recorded. 

County, \ 

Town of 1 ss ' 

Whereas, a road leading from [northward to the road~\, in 

said town of , and now used as a highway, was laid out by the 

commissioners of highways of said town, on the day of , A. 

D. 18 — , [or, by authority of the County or County Commissioners' 
Court, as the case may be,] but which is not sufficiently described of 
record, [or, has been used for twenty years for such highway, but has 
never been recorded.] 

Now, therefore, we, the undersigned, commissioners of highways 

for the said town of , do order that said road be ascertained, 

described and entered of record in the clerk's office of said town, 
according to a survey which has been made under our direction, as 
follows [here insert the survey]. And we do further order that the 
line of said survey be the center of said road and that the same be 
of the width of feet. 

Given under our hands this day of , A. D. 18 — . 

Commissioners 
of 
Highways. 

Under authority to re-survey roads, given in the above provision, the com- 
missioners proceed on their own motion, without petition. The object of the law 
seems to be to make a more perfect record of such roads, and thereby settle con- 
troversies that may arise. 

In determining the location of a road, the testimony of one who was both viewer 
and surveyor, and of all others most capable of testifying to the fact, should be re- 
ceived. Morrow v. Commonwealth, 48 Penn. State R,, 305. 

The act authorizing commissioners of highways to ascertain, describe and enter of 
record, roads used as public highways for twenty years, confers no authority upon 
them to adjudge what was originally intended in relation to the width or location of 
the road, any further than such intention is manifested by actual user, and they 



N. W, ) 
O. S., \ 
W. H., J 



DIV. VI.] COMMISSIONERS OF HIGHWAY.-. 26" 

cannot increase the width of the road or change its location. If the commissioners, 
in such cases, encroach upon lands which do not belong to the highway as ithadbeen 
actually opened and used, the owner thereof cannot take his remedy hy appeal, as 
in Other cases, but must seek it in some other form. 24 Wend. K., J91. Tulmagev. 
Hunting, 29 X. Y. Rep. (2 Tiffany) A 17. Bumpers v. Miller, 4 Mich. R., 161. 

It is held in New York, where the statute: requires public roads to be laid out four 
rods wide, that when laid out under the statute they are deemed to be that width : 
yet where they are claimed not as being laid out under the statute, but by reason of 
a user tor twenty years or more, they may be less than lour rods wide. Harlan v. 
Harridan, Cowen 11., 189. 

The uninterrupted use of land as a highway, for twenty years time, constitutes it 
a public highway, without regard to the intention of the owners. Devenpeck v. Lam- 
bert, 44 Barb. K., 5%. 

Where one has permitted the public to use a road across his land for twenty years, 
but during that time has kept a gate at each end of the road, the right acquired by 
the public is a qualified prescription, and the commissioners of roads will be enjoin- 
ed from removing the gates. Green v. Bethcn, 30 Ga. It., 8%. 

The several modes of acquiring a lug hivay are by condemnation, so called; 
by dedication and by -prescription; highways are also allowed by necessity. Daniels 
v. The People, 21 III. 11., 439. Grube v. Nichols, 36 111. R., 92. 

Condemnation is the ordinary mode of acquiring a highway 'prescribed by the 
statute.: by petition to the commissioners, an examination and survey of the route, 
and a declaration of establishment, if it is found necessary for the public interest. 
The right is given to take the land of individuals by awarding compensation, which 
is called condemnation, See post, \ 51-56. 

Dedication, is the act of donation, or appropriation of land by the owner for the 
use of the public generally, as a common way ; and an acceptance, on the part of 
the public, of the land so appropriated. Bouv. Law Dict. title " Highway." Gentle- 
man v. Soule, 32 111. R., 2T2. 

To make the dedication complete, it is essential that there should be an acceptance 
on the part of the public, as well as a donation on the part of the individual. Al- 
though the owner may declare land dedicated to the public for a highway by fenc- 
ing it out in that form, or by other evidence of dedication, yet if it be not accepted 
by the public, it will be no dedication, and he may resume the land at any time. 
Becker v. St. Charles, 37 Mo. R., 13. 

But if after such act of dedication by the owner, it is accepted by r the public, he v 
cannot change his purpose and resume the grant. Proctor v. Town of Lewistown, 25 
111. R., 153. 

To effect a dedication, there must be an intent so to do on the part of the owner. 
Bees v. Cdy of Chicago, 38 111. R„ 323. C, B. and Q. R. R. Co. v. Bunker, 44 111. R., 28, 
and authorities cited ; and this intention must be unequivocal and free irom doubt 
by-acts inconsistent with the intention to dedicate. Tallmadge v. East River Bank, 
26 N. Y Rep. (12 Smith) 105. Lownsdale v. Portland, 1 Oregon R., 397. Kelly v. City 
of Chicago, 48 111. R., 388. 

The intention may be manifested in writing ; by declaration or by acts of the owner. 
Gentleman v. Soule, 32 111. R., 272. 

The intention must be signified by something more than symbols of uncertain im- 
port, by which it has pleased a draftsman to decorate a plan of property. David v. 
JS'cw Orlcam, 16 La. An. R., 401. 

Declarations of the owner, made after the alleged dedication, may be received as 
evidence of intention. Proctor v. Town of Lewistown, 25 111, R., 153. Chapin v. State, 
24 Conn. R., 236. 

Dedication may be proved against the owner by his express declaration, whether 
by deed or by parol, or by any act unequivocally evincing his intention to dedicate, 
as by his opening a way lor the public over his land, or it may be implied from his 
acquiescence in the use of his land, for a public way. Angell on Highways, C. 3 : 
3 Kent Com., 451. Case v. Favier, 12 Minn. R., 89 ; V/ilder v. Cdy of St. Paid, 12 id., 89. 

The acceptance of a dedication is usually manifested by acts, such as taking 
charge of, and repairing the highway by the proper county or town authorities. 
gentleman v. Soule, 32 111. R., 272; Rees v. City of Chicago, 38 111. R., 323; and it may 
be shown by the actual, use by the public. Alvord v. Ashley, 17 111. R., 363 ; Dimon v. 
The People, 17 111. R., 416; Marcy v. Taylor, 19 id., 634 ; Daniels v. The People, 21 id., 
442 ; or by vote of the town in appropriating money for repairs. State v. Atherton, 16 
N. H. Rep. 203. 

A town could probably accept a dedication by laying out a highway over the 
premises dedicated on petition, as in other cases of laying out highways. 

No particular length of time is necessary for evidence of dedication. Marcy v. 
Taylor, 19 111. R , 634. Rees v. City of Chicago, 58 id., 323. 

Dedication may be proved like any other fact. Rees v. City of Chicago, 38 id., 323. 
But the evidence must be positive and certain. Lownsdale v. Portland, 1 Oregon R., 
397. 

The dedication is a mixed question of law and fact ; and the circumstances of the 
case with reference to the dedication, and the quantitv of land taken, should be left 
to the iurv. Alvord v. Ashley, 17 HI. R., 369. Waugh v" Leech, 28 id., 489. 

A straight line drawn through the centre of a Virginia fence, which has been 
continued for more than twenty years fronting on a highway, the boundaries of 
which cannot be otherwise ascertained, is to be deemed the true boundary, and 
there is no presumption that the land inclosed between that and the angles of the 



268 ROADS AND BRIDGES. [DIY. VI. 

fence next the higlnvay was not intended to be dedicated to public use. Ilolbrook 
v. McBride, 4 Gray R., (Mass.) 215. 

A dedication is not vitiated because it may have been effected by the payment of 
money. Eees v. City of Chicago, 38 111. R., 323. But a dedication on condition is 
void if the condition is not complied with. Lownsdale v. Portland, 1 Oregon R., 381. 

The soil of a road dedicated to the public belongs to the original owner, and 
reverts to him when it ceases to be applied to a public purpose. Mendez v. Dugart, 
17 La. An. R , 171. 

A party will be estopped from denying a dedication which has received his grant- 
or's acquiescence; Eees v. City of Chicago, 38 111. R., 323; or which he has acquiesced 
in by a partition of lands in which he is interested. McGregor v. Reynolds, 19 
Iowa R., 397. 

To constitute a highway by dedication, the passage way should be a thoroughfare, 
and not a court closed at the end as a means of access to the property of private 
persons, but a means of passage for the whole community from one public place to 
another. Holdanev. Trustees of Cold Spring, 23 Barb. R., 103. 

A highway acquired by dedication is like any other highway, and?'cannot be 
altered or changed at the will of the owner of the land over which it passes. Hole- 
soft r. Ring, 25 lud. R., 352. 

Jl river, though not navigable in all its parts, may be dedicated as a highway by 
the proprietors of land along its banks, in the same manner as a highway may be 
dedicated upon dry land. Yates v. Judd, 18 Wis. R., 118. 

The acknowledging and recording of a town plat, is the highest evidence 
of the dedication of the streets and alleys marked upon it, and until the town 
becomes incorporated, the streets are under control of the county or town authori- 
ties. The streets as platted cannot be enlarged or diminished, but the highway 
authorities may direct how much of a street shall be worked upon or improved. 
Streets dedicated by a plat, unless lawfully reclaimed by the person who has plat- 
ted, will forever remain to the use of the public. Waugh, suing, etc., v. Leech, 28 111. 
R., 489. 

The plat of an addition to a town, although not acknowledged and recorded, 
operates as a dedication of the streets, but not as a conveyance of the fee of the 
streets to the corporation. Banks v. Ogdcn, 2 Wallace R., (U. S.) 57. 

Prescription is the mode of acquiring a highway by long continued use. The 
uninterrupted use of land by the public for a highway, for the period of twenty years, 
is sufficient to establish the existence of a highway. Green v. Oakes, 17 111. R., 249; 
Daniels v. The Peovle, 21 111. R, 439 : Alvord v. Ashley, 17 id., 3C3. And this right con- 
tinues until it is clearly and unmistakably abandoned. A partial deviation is not 
an abandonment. Town, of Lewistown v. Proctor, 27 111. R., 414. After twenty years 
user by the public, the law presumes a grant of the right by the owner. Grubc v. 
Nichols, 36 111. R., 92. Or it may be presumed that such road" was lega'lly laid out, if 
such it is claimed. State v. Boscawen, 32 N. Jf. Rep., 331. The right of the pwhlic 
will become complete without regard to ownership whether it be individual or 
governmental. Dimon v. The People, 17 111. R.. 416. But when a road has not been 
used twenty years, its legal existence may be disputed. Eames v. Northumberland, 44 
N.H. R., p. 67. 

Twenty years is the shortest time within which the public can acquire a prescrip- 
tive right to use a road. Nor can the time during which various and distinct lines 
of travel have been used be so united as to make up the requisite time to establish 
a prescriptive right to any given single line of road. 

In case of a highway claimed by prescription, the travel may slightly deviate 
from the thread of a road which is being used, to avoid an obstruction, and still not 
change the road itself. But it is otherwise where the whole length of the road is 
abandoned for eight or nine years, and is not sufficiently traveled to prevent its 
being obstructed by the growth of weeds and br-ush. In such case there is not that 
continued user which is absolutely necessary to establish a prescriptive right. The 
public cannot acquire a prescriptive right to pass over a tract of land gener- 
ally, but it must be confined to a specific line or way. Gentleman v. Soule, 32 111. 
R., 271. 

If a road is used and traveled by the public as a highway, and is recognized and 
kept in repair as such by the proper authorities, proof of these facts furnishes a 
legal presumption, liable to be rebutted, that such road is legally established as a 
public highway. It is not necessary, in the first instance, to produce record evidence 
of the existence of a road : and parol evidence is admissible to show where a road 
is located. Eyman v. The People, 1 Gilm. R., 4. Nealy v. Brown, 1 Gilm. R., 10. 

It seems that whether the highway is by user only or by the statute, it must be of 
the width prescribed by law, where the dedication or donation is not expressly or 
impliedly restricted by the owner: when not so restricted, it is not confined to the 
mere track which is beaten by carriages and the feet of animals, in passing along, 
but includes and carries with it the width as provided by statute. Bumpers v. Mil- 
ler, 4 Mich. R., 164. 

Where, through the apparent abandonment of a public way for an unreasonable 
time, private rights have accrued, the public are estopped. Opinion Attorney Gen- 
eral Berry. (Minn.) vol. 1. p. 89. Parrish v. Stevens, 1 Oregon R., 59. 

The public have no right, however, under the law of prescription, to use and 
occupy"the soil of an individual adjoining navigable waters, asa public landing and 
place of deposit of property in its transit, against the will of the owner, although 
such user has been continued for more than twenty years. The user cannot be 



DIV. VI.] COMMISSIONERS OF HIGHWAYS. 269 

Fourth — To cause the highways or bridges which are or Highways over 
may be erected over streams intersecting highways, to be kept streams - 
in repair. (1) 

Fifth — To divide their respective towns into so many road to assign road 
districts as they shall deem convenient, by writing, under their labor * 
hands, to be lodged with the town clerk, and by him to be 
entered in the town book. Such division to be made annually, 
if they shall think it necessary ; and in all cases to be made 
at least ten days before the annual town meeting. (2) 

urged by the public either as the foundation of a legal presumption of a grant, and 
111 us justify a eiaim by prescription, or as evidence of dedication of the premises to 
pub;ie use. Pearsal v. Post, 20 Wend. R., Ill S. C. on Error, 22 Wend. R., 425. 

A highway by necessity, is where the traveled road becomes obstructed or im- 
passable for any cause. In such case the right of the public is allowed to pass over 
adjoining lands, even though the land may be sown with grain. 1 Ld. ftaym., 1 
RolieAbs., 390a, 7 Cush. R., (Mass.) 408. But such right gives the public no perma- 
nent easement in such adjoining lands. State v. Northumberland, 44 N. H. Rep., 628. 

Lands adjoining a public highway, remaining uninclosed, are considered as dedi- 
cated to the public use, and no action will lie by the owner against any person 
traveling over them. Cleveland v. Cleveland, 12 Wend. R., 172. 

(1) Wit ere a bridge is built Dy an individual over a natural stream, for his own 
benefit, if the bridge be of public utility and is used by the public, they are bound to 
keep it in repair: but not so when the necessity for "the bridge is created by the 
individual. Dygert v. Schenck, 23 Wend. R., 446. 

But it seems that the inhabitants of a county are not liable at common law for not 
repairing bridges over canals. Stale v. County oj Hudson, 1 Vroom R. (N. J..) 137. 

It is the duty of the commissioners to see that the repairs necessary on bridges are 
made, and if necessary labor is not performed through their neglect, or if the bridges 
are not kept in repair when they have funds in their hands applicable to 
such objects, they are liable for injuries that may result. 17 Johns. R., 451. 
But commissioners of highways are not bound to build or repair bringes when not 
in funds to defray the expenses. 7 Wend. R., 474. And an indictment against com- 
missioners of highways for not repairing bridges is defective, unless it aver that the 
defendants had funds or other means to defray the expenses. 2 Hill R., 619. 

At common law the counties and not towns were liable to build and repair the 
necessary bridges, and the remedy for neglect was by indictment. 17 Johns. R., 452. 
This burden is imposed on counties by almost universal usage, and the exception 
throwing the burden on towns or particular corporations only the more clearlv 
shows the general rule. Hoes v. Canal Trustees, 14 111. R., 402 ; Dennis v. Mavnard, 15 
111. R.. 477. 

It is held in New Jersey that the inhabitants of a county are not indictable for not 
repairing bridges. State v. Count// of Hudson, 1 Vroom R. (N. J.,) 137. 

(2) Form of Order dividing Town into Road Districts. 

Countv, \ 

Town of' . / ss " 

We, the commissioners of highways for the said town of , do 

hereby order that said town be divided into road districts, as 

follows : Road district number one shall embrace all of the highways 
contained within the following territory [or boundaries, giving the 
description by sections, or outward boundaries, as may be thought proper], 
and all the inhabitants liable to work on the highways residing there- 
in, shall be and are hereby assigned to work on the highways in said 
district number one. District number two shall, etc., [continue as 
aforesaid, until the whole town is divided.'] 

Given under our hands this day of , A . T). 1 8 — . 

A. E., ~) Commissioners 
E. D., [ of 

0. H., J Highways. 

The commissioners of highways have a right to divide the town into road districts 
at any time during.the year, ten days before any town meeting. Opinion Att'y Gen'l 
Berry (Minn.), vol. 1, p. 92. ' * 



270 ROADS AND BRIDGES. [dIY. VI. 

working of Sixth — To assign to each of the said road districts such of 

highways. t j ie inhabitants liable to work on highways as they shall think 
proper, having regard to proximity of residence as much as 
may be. 
To require Seventh — To require the overseers of highways, from time 

wa e r r n e pSso ns to ti me J an d as °f ten as tne y shall deem necessary, to warn 
to work. a n persons to work on highways, to come and work thereon, 

with such implements, carriages, plows and teams as they 
may have ; and the said commissioners, or any of them, shall 
direct and see that persons working or repairing the high- 
ways leave undisturbed all stones or other monuments mark- 
ing sectional and other corners, which may be in the public 
roads worked or repaired by them. 
To keep scrap- Eighth — To take possession of and keep all scrapers, 
To'purchase 10 ' plows and other tools belonging to their town, wherever the 
tools.. same may be found, and not allow the same to go to waste, 

and not to lend the same, except to persons employed by them 
to work on the roads by contract or otherwise. 
b°ara e s CtgUidc " Ninth — To purchase for use upon highways such necessary 

tools, implements and machinery as may be necessary. 
To prevent Tenth — To cause to be erected and kept in repair, at the 

from growing forks or crossing place of the most important public roacls, a 
in public high- p 0S t an( j guide -boards, with plain inscriptions thereon in let- 
ways. r . o ..,.*. " 1 V 

ters and ngures, giving directions and distances to the most 
noted places to which such road may lead; to prevent thistles, 
burdock, cockle burs, mustard, yellow -dock, Indian mallow 
and jimson weed from seeding, and to extirpate the same so 
far as practicable, and to prevent all rank growth of vege- 
tation in the public highway, so far as the same may obstruct 
public travel ; and the said highway commissioners may, in 
To sink wells their discretion, sink and construct- wells, with a suitable 
water? Pply pump or other suitable fixture, and a water-trough attached 
thereto, and keep the same in repair, for public use for water- 
ing teams, at the intersection of the most important roads in 
their towns or road districts ; and they may also adopt any 
other suitable and convenient mode of supplying the water in 
troughs conveniently situated on the public highways for pub- 
lic use, at other points than at such intersections ; and the 
cost of such improvements shall be paid out of the road and 
bridge funds of such town, 
commissioners Sec. 11. At the first meeting of the commissioners of high- 
10 choose treas- wayS) after they shall have been duly elected and qualified, 
they shall proceed to choose one of their number as treasurer. 
The treasurer so chosen shall receive and have charge of all 
moneys raised in the town for the support and maintenance 



DIV. VI.] COMMISSIONERS OF HIGHWAYS. 271 

of roads and bridges. lie shall hold such moneys, at all iiis duties, 
times, subject to the order of the commissioner of highways, 
and shall pay them over upon their order, or a majority of 
said commissioners, and not otherwise. He shall execute He shall give 
bond, with good and sufficient security, in such manner as the 
supervisor and town clerk shall determine, conditioned for the 
faithful discharge of his duties as such treasurer, and that he 
will honestly and faithfully account for and pay over upon the 
order of the commissioners of highways, all moneys that shall 
come to his hands by virtue of his said office ; which bond 
shall be payable to the supervisor of the town and his suc- 
cessor in office, and be approved by the supervisor and town 
clerk, and filed in the town clerk's office. (1) 

Sec. 12. The commissioners of highways of each town shall Account of 
render to the board of town auditors, at their annual meeting ofhighwa^To 
for auditing the accounts of town officers, an account in writing, towu audllors - 
stating :(2) ^ 

(1) Form of Bond of Treasurer of Commissioner of Highways. 

Know all men by these presents, that we, T. R., as principal, and 
R. R. and C. H., as sureties, are firmly held and bound to "W. D., 
supervisor of the town of , in the county of , and to his suc- 
cessor in office, in the penal sum of dollars, which payment to 

"be well and truly made, we do bind ourselves, our heirs, executors 
and administrators, jointly and severally, by these presents. 

The condition of this obligation is such, that whereas, the above 
bounden T. R. was, on the day of •, 18 — , duly chosen treas- 
urer of the board of commissioners of highways of the said town of 

, and is about to enter upon the performance of the duties of 

said office. Now, therefore, if the said T. R. shall faithfully dis- 
charge his duties as such treasurer, and shall honestly and faithfully 
account for, and pay over upon the order of the commissioners of 
highways of said town, all moneys that shall come to his hands by 
virtue of his said office, then this obligation shall be void, otherwise 
to be in full force. 

Witness our hands and seals this day of , A. D. 18 — . 

T. R., [seal.] 

Approved by us. A. B., Supervisor. R. R., [seal.] 

C. D., Town Clerk. C. 11., [seal.] 

The law does not fix the amount in which the bond shall be taken. This would 
seem to be in the discretion of the supervisor and town clerk. It should be ample 
in amount to cover all money that may come to the hands of the treasurer. It is 
proper that the supervisor and town clerk should endorse their approval on the 
bond. 

A town supervisor cannot maintain an action on the bond of a commissioner of 
highways for neglect to deliver to his successor money which has been raised and 
paid over to him for the purpose of paying damages occasioned by the laying out of 
a highway where such highway has never been opened or worked, because the pro- 
ceedings laying it out were void. Gailor v. Herrick, 42 Barb. R., 79. 

(2) Form of Account of Commissioners of Highways to be rendered to Town 

Auditors. 

To the Board of Town Auditors of the Town of — , in the County 

of , State of Illinois : 

The annual account of the commissioners of highways of , for 



EOADS AND BRIDGES. [DIV. VI. 



account. 



Requisites of First — The labor assessed and performed in such town. 

/Second — The sums received by such commmissioners for 
fines and commutations, and all other moneys received under 
this act. 

Third — A statement of the improvements necessary to be 
made on such roads and bridges, and an estimate of the prob- 
able expense of making such improvement, beyond what the 
labor to be assessed in that year and the road tax will accomplish. 

Fourth — Also, a statement in writing, of all expenses and 



the year ending the day of , A. D. 18 — , showeth as follows, 

to wit : 

1st. The labor assessed in said town during the year ending on the 

day of , A. D. 18 — , is days, and the amount of said labor 

actually performed is days, as appears by the returns made to 

us by the several overseers of highways in said town. 

2d. We have received for fines and commutations, and from other 
sources, under the statutes relative to highways, the sum of dol- 
lars, as follows, to w it : 
1856. 1 
July 6. From R. W., as balance of money received by him 

as overseer. . * S 7.80 

Oct. 9. 'From J. S., penalty for refusing to serve as overseer. 10.90 

3d. The improvements necessary to be made on the roads and 
bridges in said town, are as follows : [Here state what improvements are 
necessary]. We estimate the probable expense of making such im- 
provements, beyond what the labor to be assessed this year, and the 
road will accomplish, at dollars. 

4th. The expenses and damages in consequence of laying out, alter- 
ing or discontinuing roads during the year ending as aforesaid, 
amount to the sum of dollars, as follows : 

To total expenses in laving out road leading from [here describe 
the road,] $ 7.00 

Damages allowed on same, 40.00 

Total expenses in altering and discontinuing part of road 
from [here describe the road.] 8.00 

Damages allowed on same, 50.00 

5th. We have received of the collector of the town, up to the time 
of rendering this account, the sum of eighty-four dollars (S84.00), and 
have paid out the same as follows : 

Paid to A. B., C. D., and E. F. for three days' labor, each at 
$1.00 per day, in repairing highways at [state location,] S 9.00 

Paid to J. C, in full, on his contract for building bridge at 

[state location of bridge,] 75.00 



S34.00 
[If any balance remain, say :] Leaving in our hands a balance of 

, on account of money received from the collector. 

Given under our hands this day of , A. D. 18 — 

H. P., ") Commissioners 
C. P., { of 

M. H., J Highways. 

A town has no authority, however, to raise money to aid in the construction of a 
road which by law is to be made at the expense of the county ; consequently a tax 
laid by the town for the purpose of collecting the money, is illegal and void. So held 
in Massachusetts. Pearson v. Goshen, 17 Pick. R, 396. 



DIV. VI.] HIGHWAY LABOR AND ROAD TAX. 273 

damages in consequence of laying out, altering or discontinu- 
ing roads. 

Fifth — Also, a statement of the amount received from the 
collector of the town, or from any other source, up to the time 
of such statement, and the manner in which the same, if any 
sum, has been paid out and expended, to whom, and en what 
account. 

Sec. 13. The commissioners of highways of each town shall Meetings of 
meet, within ten days after they are chosen, at the town clerk's commissioners - 
office, on such day as they shall agree upon, and afterwards at 
buch other times and places as they shall think proper. 

Sec. 14. The town clerk shall deliver the lists filed by the Assessment of 
overseers, to the commissioners of highways of the town, who y 

shall proceed to ascertain, estimate and assess the highway 
labor and road tax to be performed and paid in their town the 
next ensuing year.(l) 

HIGHWAY LABOR AND ROAD TAX. 

Sec. 15. Every able-bodied male inhabitant, being above who required 
the age of twenty - one years and under the age of fifty (except- roa&s.° r ° U 
ing paupers, idiots, lunatics, and such others as are exempt by 
law), shall be required to labor on the highways in their res- 
pective road districts, not less than one nor more than three 
days in each and every year. (2) 

Sec. 16. The commissioners of highways shall assess a Road tax en 
road tax on all real estate and personal property liable to tax- real estiite - 
ation of the town, to any amount they may deem necessary, 
not exceeding forty cents on each one hundred dollars' worth, 
as valued on the assessment roll of the previous year : Provi- 
ded, that the tax on property lying within any incorporated 
village, town or city, in which the streets and alleys are under City property, 
the care of the corporation, shall be paid over to the treasurer 
of such village, town or city, to be appropriated to the im- 
provement of roads, streets and bridges, under the direction 
of the corporate authorities. 

(1) Where exclusive jurisdiction is given a city or town corporate to improve streets, 
the general laws of the State, like that of exemption in regard to road labor, ceases 
to be applicable. Fox v. City of Rockjord, 38 111. R., 452. And it is competent for the 
legislature to provide for exempting the inhabitants of city and town corporation 
from labor outside of their corporate limits. Town of Pleasant v. Kost, 29 111. R., 495. 

A township may control the road labor of the inhabitants of a city or town cor- 
poration situated within the township. O'Kane v. Treat et al., 25 111. It., 557. 

(2) Labor to repair a road is not a tax; hence an exemption as to persons is not un- 
constitutional. Town of Pleasant v. Kost, 29 111. R., 495 ; Fox v. City of Rockjord, 38 
111. R., 451. 

The law exempting a school director from working on the highway, does not ex- 
empt him from the Jpayment of property tax. McDonald v. Madison. Coicnty, 43 111. 
R., 23. 



274 



ROADS AND BRIDGES. 



Tdiv. VI. 



Number of Sec. 17. The commissioners of highways shall affix to the 

JiSd toi£t. af ' name of eacn person named in the lists so furnished by the 
overseer, the number of days assessed to each person for high- 
way labor, personal property, and also a description of each 
tract of land and the name of the owner, if known, with the 



Description 
and value of 
land. 



valuation thereof, as taken from the assessment roll of the 
previous year, and the amount of road tax assessed thereon, 
in a separate column. The lists so prepared shall be sub- 
scribed by the commissioners, and deposited with the town 
clerk, to be filed in his office.(l) 
clerks make Sec. 18. The commissioners shall direct the clerk of the 
copies of list. town to ma k e a CO py f q^ \\ s ^ anc l sna n subscribe such 

(1) Form of Order of Commissioners assessing Highway Labor and 

Road Tax. 

County, \ 

Town of ,/ ss - 

At a meeting of the commissioners of highways of said town 

of , at the town clerk's office, in said town, on the day 

of , A. D. 18 — , the said commissioners having proceeded to 

ascertain, estimate and assess the highway and road tax to be per- 
formed and paid in said town the ensuing year, do estimate and 
assess two days' highway labor to each and every male inhabitant in 
said town, liable to be assessed for highway labor, to be performed in 
said town the ensuing year; and we do assess a road tax of twenty 
cents on each one hundred dollars worth of real estate and personal 
property liable to taxation of said town, as valued on the assessment 
roll of the past year, to be paid in said town the ensuing year. 

Witness our hands this day of , A. D. 18 — . 

N. P., ") Commissioners 
W. C, \ of 

J. W.J Highways. 

Form of List of Assessment of Highway Labor. 
County, \ 

Town of ,/' 

We, the commissioners of highways of the said town of , hav- 
ing proceeded to ascertain, estimate and assess the highway labor 
and road tax to be performed and paid in said town the ensuing 
year, have made out the estimate and assessment for road district 
number one in said town, to wit: 

The inhabitants of said town, assigned to said road district, are 
assessed for highway labor as follows, viz. : 



ss. 



NAMES. | NO. OP DAYS. 


H. S., 
I. H., 


2 
2 



Given under our hands this day of , A. D. 18 — . 

R. L., ) Commissioners 
E. S., [ of 

H. P., J Highways. 

The town clerk will make a copy of the foregoing list. 

R. L., ") Commissioners 
E. S., V of 

H. P., J Highways. 



DIV. VI.] HIGHWAY LABOR AND ROAD TAX. 275 

copies, after which they shall cause the several copies to be copies deiir- 
delivered to the respective overseers of highways of the several ^s. t0 ° vcr 
districts in which the highway labor is assessed. One copy 
for each overseer shall contain the narre and number of days 
sed to each person, the other the real and personal prop- 
erty road tax.(l) 

Sec. 19. It shall be the duty of the overseers to add the subsequent ad- 
names of persons left out of any such list, and of new inhabits? 11 
itants, and to rate the persons so added in the same proportion 
to work on the highways as others rated by the commissioners 
on such list, subject to an appeal to the commissioners. 

Sec. 20. It shall be the duty of commissioners of highways credit to per- 
of each town to credit such persons as live on private roads private^d™ 
and work the same so much on account of their assessment as 
such commissioners shall deem necessary to work such private 
road, or to annex such private road to some of the highway 
districts. 

Sec. 21. The town clerk shall, within ten days after the Posting of no- 
commissioners of highways have filed in his office the amount amount^ 
of road tax assessed on the real and personal estate of the gg£ tax 1S 
towns, post a notice on the outer door of the house where the 

(1) Form of List of Assessment of Road- Tax. 
County, ) 

Town of ,/ ss ' 

We, the commissioners of highways of said town of , having 

proceeded to ascertain, estimate and assess the highway labor and 
road tax to be performed and paid in said town the ensuing year, 
have made out the estimate and assessment of the lands situated in 
road district number one, with the names of the owners so far as 
known for road tax, as valued on the assessment roll of last year, to 
wit, A. D. 18 — , as follows: 



NAME 
OF OWNER. 



DESCRIPTION NO. VALUE j TOTAL AM T VALUE OF 

OF LANDS. ACRES.' TER ACRE.! VALUE. TAX. PER PROP. 



AM'T TOTAL 
OF TAX. TAX. 



H. S. iN. W. i^Sec. Ill 100 I KP.00 183,200.001 $G.40c.[ 81,000.00 
S. C. S. W. hi " " 1G0 20.00 3.200.00 6.40c. 800.00 



$3.20 I §9.00 
1.60 I 8.00 



Given under our hands this day of , A. D. 18 — . 

R. L., ) Commissioners 
E. S., I of 

H. P., J Highways. 

The town clerk will make a copy of the foregoing list. 

R. L., ) Commissioners 
E. 8., I of 

H. P., J Highways. 

TTie personal property road tnor. of au individual, if not paid, should be 
returned with his land tax, to be levied upon the land, and collected and paid over 
to the commissioners the same as the land tax. See pout, sections 43 and 50. Where 
the individual has no land assessed, the remedy for the recovery of his personal 
tax, is, no doubt, by an action in the name of the town, to be prosecuted in the same 
manner as ordinary actions; and this is an appropriate remedy to enforce the pay- 
ment of a tax, without regard to the remedy given by distress. See Ryan v. Gallatin 
Co., 11 111. R., 83 ; Glancey v. Elliott, id., 458 ; JDunlap v. Gallatin Co., 15 id., 9. 



276 ROADS AND BRIDGES. [dIV. VI. 

town meeting was last held, stating the amount of road tax 
assessed on each one hundred dollars' worth of the real and 
and personal estate of the town, and that all persons interested 
can pay the same in labor on the highways, under the direc- 
tion of the overseer of highways, in the district where the 
land or personal property .is situated.(l) 

Neglect of duty Sec. 22. If the commissioners of highways shall refuse or 

ers?° mmiSS10n " neglect to perform any of the duties enjoined on them by this 
act, they shall severally forfeit not less than ten dollars nor 

Penalty. more than fifty dollars, and may be proceeded against, sever- 

ally or jointly, for the recovery of such forfeiture before any 
justice of the peace in the proper county having jurisdiction. 

Overseers of Sec. 23. There shall be chosen at the annual town meeting 

wh h n Va h* s ' in each town, as many overseers of highways as there are 
road districts in the town ; and each overseer of highways, so 
chosen, shall be a resident of the road district for which he is 
elected, and shall hold his office for one year : Provided, there 
shall be chosen at the annual town meeting in April, 1873, 
one overseer of highways for each road district, as constituted 
previous to the passage of an act entitled " Roads and 
Bridges," approved April 10, 1872. 

Duties of over- Sec. 24. It shall be the duty of overseers of highways in 

?5„ e I! oflligh " each town : 

First — To repair and keep in oruer tne highways within 
their several districts for which they shall have been elected. (2) 
Second — To warn all persons, from whom road labor is 
due, to work on the highways at such times and places, within 
their several districts, as they may think proper. The over- 
seers of highways may contract • with persons owing poll tax 
for road purposes, to perform a certain amount of labor on 
any road or bridge in their town or road district for the 
amount of such tax ; and if the work is done within the time 
that the money should have been paid, the overseer shall give 
such person a receipt for such labor done or performed. (3) 

(1) Form of Notice of Assessment of Property Tax. 

Notice is hereby given that the amount of road tax assessed on 

each one hundred dollars' worth of real estate of the town of , 

in the county of , for the ensuing year, is twenty cents, and that 

all persons interested can pay the same in labor on the highways, 
under the direction of overseers of highways in the district where 
the land is situated. , H. N., Town Clerk. 

Dated at , May 1, 18—. 

(2) Au overseer of highways is bound to remove obstructions from the highway? 
within his district, although not specially directed to do so by the commissioners. 
McFadden v. Kingsbury, 11 Wend. R., GG7. 

(3) Labor assessed for highway purposes can only be bestowed upon such 
roads as are established by law. When lands are dedicated by the owner to public 



ways. 



D1V. VI.] HIGHWAY LABOR AND ROAD TAX. 277 

Third — To collect all fines and commutation money, and 
to execute all lawful orders of the commissioners of high- 
ways. (1) 

Fourth — To deliver to the clerk of the town, within six- 
teen days after their election or appointment, a list subscribed 
bv such overseers, of the names of all the inhabitants in his 
road district who are liable to work on highways. (2) 

Sec. 25. If any person chosen or appointed to the office of Vacancy in 
overseer of highways, shall refuse to serve, or if his office shall £j£ e °* ° ver 
become vacant, the commissioners of the highways of the 
town shall, by warrant, under their hands, appoint some other 
person in his stead ; and the overseer so appointed shall have 
the same powers, be subject to the same orders, and liable to 
the same penalties, as overseers chosen at the town meet- 

i"g-(8) 

use as streets, they do not become public highways until accepted as such by the 
public authorities. Oswego v. Oswego Canal Co., 2 Selden R., 263. 

A highway overseer has no authority to expend money committed to him for the 
repair of highways in changing the line of travel, and constructing a new road. 
Todd v. Rowley, 8 Allen R., (Mass.) 51. But this probably does not apply to the case 
of a slight departure from the established road from necessity to avoid a formidable 
obstruction. 

It is a question whether, after a road has been laid out, it may be abandoned by 
mere non-user, so as to relieve the town authorities from the duty of keeping it in 
repair. When a road is used to any extent, although it may be obstructed by mov- 
able bars across it, it will not be considered as abandoned. State v. Alstead, 18 N. H. 
Rep., 59. 

(1) The overseer is not obliged, nor is he authorized to procure a scraper or plow 
to use on the highwavs, without being directed and empowered to do so by the com- 
missioners. McFadden v. Kingsbury, 11 Wend. R., 667. 

(2) Form of Overseer's List of inhabitants liable to work on the highways. 
County, \ 

Town of , / ss - 

I, J. H., overseer of highways for road district, number , in said 

town of , do certify that the following is a true and correct list 

of all the inhabitants in said road district, who are liable to work on 
the highways, viz. [Here insert the names']. 

Dated this day of- , A. D. 18— 

J. H., Overseer of Highways. 

(3) Form of Appointment of Overseers of Highways in case of vacancy. 
County, \ 

Town of , i ss * 

Whereas, a vacancy has occurred in the office of overseer of high- 
ways, for road district, No. , in said town, by reason of the 

removal [or, refusal to serve, or death, as the case may be] of , 

elected to said office : Now, therefore, w T e, the undersigned commis- 
sioners of highways of said town, do hereby appoint M. P., to be 

overseer of highways of and for said road district, No. , in said 

town, to fill said vacancy. 

Given under our hands this day of , A. D. 18 — . 

E. M., ) Commissioners 



B. M., ) 
A. W., \ 

r. b., J 



J. B., J Highways. 
The form of notice used in case of appointment of town officers, may ;be used in 
this case with little variation, to suit the occasion. See ante, p. 



278 ROADS AND BRIDGES. [DIY. VI. 

Appointment Sec. 26. The commissioners making the appointment shall 

to be filed. ca use such warrant to be forthwith filed in the office of the 
town clerk, who shall give notice to the person appointed, as 
in other cases. 

Neglect of duty Sec. 27. Every overseer of highways who shall refuse or 
neglect to perform any of the duties hereinbefore enumerated, 
or which may be lawfully enjoined on him by the commis- 
sioners of highways of his town, shall, for every such refusal 

Penalty. or neglect, forfeit the sum of ten dollars, to be sued for bv 

the commissioners of highways of the town, and when recov- 

How applied, ered, to be applied by them in making and improving the 
roads and bridges therein. (1) 

Labor on high- Sec. 28. It shall be the duty of overseers of highways to 

to a plrforni ice S* ve at ^ east tnree days' notice to all persons assessed to work 
on highways, and residing within the limits of their respective 
districts, of the time and place when and where they are to 
appear for that purpose, and with what implements; but no 

where to work, person, being a resident of the town, shall be required to work 
on any highway other than in the district in which he resides, 
except he resides in a district on a town line, which district 
belongs to an opposite town, and unless he shall elect to work 
in some district where he has any land; and in such case he 
may, with the approbation of the commissioners of highways, 
apply the work assessed in respect to such land in the district 
in which the same is situated.(2) 

for'iSSr aw ^EC. ^. Every person liable to work on the highways shall 

a day. work the whole number of days for which he shall have been 

assessed; but every such person, other than an overseer of 
highways, may elect to commute for the same, or for any part 
thereof, at the rate of one dollar and fifty cents per day; in 
which case such commutation money shall be paid to the over- 
seer of highways of the district in which the person commu- 

(1) An overseer of highways is not liable to a private action for any error of 
judgment in the execution of his trust. He is only responsible for any neglect or 
refusal under the section of the act "which subjects him in such a case to a penalty. 
Freeman v. Cornwelt, 10 Johns. R., 470. If, however, t he acts maliciously or oppres- 
sively, it is otherwise. 5 Johns R., 123. 

(2) This notice is not required by the law to be reduced to writing, but should the 
overseer think to give notice in writing, he can adopt the following form: 

Form of Notice to Person to work on the Highway. 
To Mr. D. R. : 
Sir: — You having been assessed a poll tax of two days, to be 

worked on the highways in road district No. — , in the town of , 

are hereby notified to appear with [state with what implements'] on 

the day of , 18 — , at o'clock in the forenoon, at 

[state the place"], for the purpose of -working said highway poll tax. 

Dated this day of , A. D. 18—. 

J. S., Overseer of Highways. 



PIY. VI.] HIGHWAY LABOR AND ROAD TAX. 279 

ting shall reside, to be applied and expended by such overseer 
in the improvement of the roads and bridges in the same 
district. 

Sec. 30. Any person intending to commute for his assess- Time allowed 
ment, or any part thereof, shall, within three days after he to commute - 
shall be notified to appear and work on the highways, pay the 
commutation money for the work required of him by such 
notice ; and the commutation shall not be considered as com- 
plete until such money be paid. 

Sec. 81. Every overseer of highways shall have power to Teams and 

J l -i.1. • n tools to be fur- 

require a team or a cart, wagon or plow, with a pair ot horses nisbed. 

or oxen, and a man to manage them, from any person having 
the same within his district, who shall have been assessed two 
days or more, and who shall not have commuted for his assess- 
ment; and the person furnishing the same, upon such requisi- 
tion, shall be entitled to a credit of two days for each day's 
service therewith. 

Sec. 82. Every person assessed to work on the highways, work in person 

j j * l • -U ?-, or by substitute 

and named to work, may appear in person, or by an able 

bodied man as a substitute, and the person or substitute shall 

actually work eight hours in each day, under a penalty of Hours of labor - 

twenty -five cents for every hour such person or substitute 

shall be in default, to be imposed as a fine on the person 

assessed. 

Sec. 33. If any person, after appearing, remain idle, or Penalty for 
not work faithfully, or hinder others from working, such ldieness ' 
offender shall, for every offense, forfeit to the town the sum of 
two dollars. 

Sec. 31. Every person so assessed and duly notified, who Fines and for- 
shall not commute, and who shall refuse or neglect to appear, gTJcfto appear 
as above provided, shall forfeit to the town, for every day's andworK * 
refusal or neglect, the sum of two dollars. If he was required 
to furnish a team, carriage, man or implement, and shall refuse 
or neglect to comply, he shall be fined as follows : 

First — For wholly failing to comply with such requisition, 
four dollars for each day. 

Second — For omitting to furnish a pair of horses or oxen, 
one dollar and fifty cents for each day. 

Third — For omitting to furnish a man to manage the team, 
two dollars for each clay. 

Fourth — For omitting to furnish a wagon, cart or plow, 
seventy -five cents for each day. 

Sec. 35. It shall be the duty of every overseer of highways, complaint 
within six days after any person assessed and notified shall be Slnnquent. 
guilty of any refusal or neglect, for which a penalty or fine is ■ 



collection. 



280 ROADS AXD BRIDGES. [DIV. VI. 

prescribed in this act, unless a satisfactory excuse shall be 
rendered to him for such refusal or neglect, to make complaint, 
on oath, to any justice of the peace of the county. (1) 

justice to issue Sec. 36. The justice to whom such complaint shall be 
made shall forthwith issue a summons, directed to any consta- 

service. D ^ e °f tne county, requiring him to summon such delinquent 

to appear within five days before such justice, according to 
law, for such refusal or neglect. (2) 

May impose Sec. 37. On the day of trial the justice shall proceed to 

warrant for hear and determine the case according to law, for the offense 
complained of, and shall forthwith issue an execution under his 
hand and seal, directed to any constable of the county where 
such delinquent shall reside, commanding him to levy such 
fine, with the cost of the proceeding, of the goods and chattels 
of such delinquent. (3) 

(1) This complaint need not necessarily be in -writing ; it will be a sufficient com- 
pliance with the law, if made on oath, in which case the complaint may be recited 
m the summons. The complaint of the overseer will be presumed to be true until 
the contrary appears. The justice must proceed upon it as such, and if the proceed- 
ings prove to be unauthorized, the overseer is liable. 9 Johns. R., 229. 

(2) Form of Summons for refusing to work. 
State of Illinois, \ 

County, / ss - 

The People of the State of Illinois to any Constable of the town of 
, in the aforesaid County, greeting : 

"Whereas, complaint hath this day been made before me, S. 0., one 
of the justices of the peace of said town, upon oath by S. W., over- 
seer of highways in road district number , in said town, that J. S., 

who has been assessed for highway labor in "said district, and has 
been duly notified to perform such work, has neglected to appear in 
pursuance of such notice, either in person or by an able bodied man 
as a substitute, together with a pair of oxen as required by said notice 
[or, as the case may be], and perform such labor; you are, therefore, 
hereby commanded to summon the said J. S., to appear before me at 

my office in said town on the day of , 18 — , at o'clock 

— M., to show cause why he should not be fined according to law, 
for such refusal or neglect, as in said complaint alleged. 

Given under my hand and seal this day of , A. D. IS — . 

S.O., [seal.] 
Justice of the Peace. 

(3) Form of Execution for collecting fine. 
State op Illinois, \ 

County, / ss * 

The People of the State of Illinois to any Constable of the town of 
, in the County aforesaid, greeting : 

"Whereas, complaint was lately made to me, S. 0., one of the justices 
of the peace of said town, by S. W., overseer of highways for road 

district number , in said town, that J. S., who was assessed, etc. 

[recite the complaint], whereupon a summons was issued by me requir- 
ing the said J. S., to appear before me at my office in said town, on 

the day of 18 — , at o'clock — M., to show cause why 

he should not be fined for such neglect [or refusal, or as ilie case may 



tax. 



PIV. VI.] HIGHWAY LABOR AND ROAD TAX. 281 

Sec. 88. The constable to whom such execution shall be Duty of consta- 
delivered, shall forthwith collect the moneys therein men- blc - 
tioned. He shall pay the fine when collected, to the justice 
of the peace who issued the execution, who is hereby required 
to pay the same to the overseer who entered the complaint, to 
be by him expended in improving the roads and bridges in the 
district of which he is overseer. 

Sec. 89. Every fine collected for refusal or neglect to penalty set off. 
appear and work on the highways, shall be set off against his 
assessments or personal labor tax upon which it was founded, 
estimating every two dollars collected as a satisfaction for one 
day's work. 

Sec. 40. The acceptance, by an overseer, of any excuse Excuses. 
for refusal or neglect, shall not, in any case, exempt the per- 
son excused for commuting for or working the whole number 
of days for w T hich he shall have been assessed during the year. 

Sec. 41. It shall be the duty of overseers of highways to Notice by over- 
warn all residents of his district against whom a land or per- propertyroad 
sonal property road tax is assessed, giving them three days' 
notice, to work out the same upon the highways ; and he shall 
receive such tax in labor from every able-bodied man, or his 
substitute, at the rate of one dollar and fifty cents per day. 
And any person or his agent may pay such tax in road labor, 
at the rate of one dollar and fifty cents per day, and in pro- 
portion for a less amount : Provided, that any person may 
elect to pay such tax to the overseer in money. (19) 

Sec. 42. It shall be the duty of the overseer of highways, D Uty of over- 
when such land tax has been paid, either in money or labor, f|p r a -J 
to write the word "paid" distinctly against each name or 
tract on his list, on which the same has been paid, and give a 

be], which Fiiramons was duly served and returned to me by a con- 
stable of said town, and the said J. 6., not having shown any sufficient 

cause to the contrary, I have imposed a fine of dollars on him 

for his offense, complained of as aforesaid, and taxed the costs of the 

proceedings on said complaint at dollars and cents. You 

are, therefore, hereby commanded to levy the said fine, with the 
costs of proceedings, on the goods and chattels of the said J. S., and 
make returns to me without delay, and have you then and there the 
amoirit of said fine and costs. 

Given under my hand and seal this day of , A. D. IS — . 

S. 0., [seal.] 
Justice of the Peace. 

(11 When the overseer of highways desires to give notice in writing, to warn "per- 
sons to work out property tax, the form given for notice in case of poll tax can be 
used by varying to suit the occasion See ante, p. 278. 

The person assessed is uot liable until he has had notice to work ; but he may 
waive the notice either express y or by acts, from which the waiver may be inferred. 
McDonald v. Madison County, 43 111. R., 24. 



when lax 



282 ROADS AXD BRIDGES. [DIV. VI. 

receipt for the same, whether paid in labor or money, when 
demanded. 
Delivery of list Sec. 43. Every overseer of highways shall deliver to the 
to supervisor, supervisor of his town, and in Cook county to the county 
board, at least five days previous to the annual meeting of the 
board of supervisors, the lists furnished by the commissioners 
of highways, containing the land and personal property road 
Affidavit as to tax, with an affidavit thereto, sworn to before the supervisor 
payment of tax Q £ ^ town? or some j us tice of the peace of the county, that 
on all tracts of land on such list opposite which the word 
"paid" is written, such tax is paid, and that on all tracts of 
land on such list, opposite which the word "paid" is not 
written, such tax is due and remains unpaid, according to the 
best of his knowledge and belief. (1) 
Penalty for re- Sec. 44. If any overseer shall refuse or neglect to deliver 
fist a or t make iver sucn ^ st to tne supervisor, as provided in the last preceding 
affidavit. section, or shall neglect or refuse to make the affidavit, as 
therein directed, he shall, for every such offense, forfeit the 
sum of five dollars, and also the amount of tax or taxes 
remaining unpaid, to be recovered by the commissioners of 
highways of the town, to be applied by them in improving the 
roads and bridges of such town. 
Labor, -when to Sec. 45. It shall be the duty of every overseer of higli- 
be worked. wa y S to have at least three - fourths of the road labor assessed 
in his district worked out or actually expended on the high- 
ways, previous to the first day of October in every year. 

(1) Form of Affidavit of Overseer of Highways upon Return of List to 

Supervisor, 
State of Illinois, \ 

County, j* ss * 

J. W., overseer of highways for road district number , in the 

town of , in said county, being duly sworn, doth depose and say, 

that on all tracts of land described in the annexed list, opposite 
which the word " paid " is written, such tax is paid, and that on all 
tracts of land on such lists opposite which the word "paid" is not 
written, such tax is due and remains unpaid, according to the best 
of his belief and knowledge. 

J. W. 
Subscribed and sworn to before me, this ) 

day of , A. D. 18—. [ 

* J, L., Justice of the Peace. J 

Note. — The overseer should write the word "paid" against the amount of per- 
sonal property tax of each individual, when it has been paid, the same as in case of 
payment of the land tax, and he ought properly to add the following clause to the 
foregoing affidavit, although it seems not to be absolutely required by the law : 

" And further, that the personal property tax set forth in said list, 
against which the word ' paid ' is not written, remains likewise un- 
paid, according to his belief and knowledge." 






DIV. VI.] HIGHWAY LABOR AND ROAD TAX. 283 

Sec. 46. Every overseer of highways shall, on the second Account of 
Tuesday next preceding the time of holding the annual town oversccr ' 
meeting in his town, within the year for which he is elected 
or appointed, render, under oath, to one of the commissioners 
of highways of the town, an account, in writing, contain- 
ing (1) __ 

(1) Form of Overseer's Annual Account. 
State of Illinois, ") 

County, » >- ss. 

Town of J 

I, L. G., overseer of highway for road district, No. , in said 

town, hereby render to N. O., one of the commissioners of highways 
of said town, the following account, to wit : 

1st. The names of all persons assessed to work on the highways in 
said district, are as follows : 

[Here insert the names.'] 

2nd. The names of all those who have actually worked on the 
highways, with the number of days they have actually worked, are 
as follows : 



Names. 



No. of davs. 



W. P., 2 

O. O., 2 

3rd. The names of all those who have been fined, and the sums in 
which they have been fined, are as follows: 



Names. 



J. D., 



Am't of fine. 
~~$3 I 00 



4th. The names of all those who have commuted, and the manner 
in which the money arising from fines and commutations have been 
expended by me, are as follows : 



Names of persons commuting. 



G. G., 



Amount. 



$1 I 25 



I have received for fines and commutations as above set forth, the 

sum of $ , of which amount I have expended the sum of $ in 

[here state how the money has been expended], and no moneys remain in 

my hands unexpended [or the sum of $ remains in my hands 

unexpended]. 
5th. The amount of uncollected land road tax which I have 

returned to the supervisor of the town as required by law r , is 

dollars, and the amount of uncollected personal property road tax, 

thus returned, is dollars. 

L. G., 

Overseer of Highways of District, No. . 

Dated this day of , 18—. 

L. G., overseer of highways of district No. in said town, who 

has subscribed the foregoing account, being duly sworn says that 
1 he statements in said account are true as therein set forth. 

L.G. 

Subscribed and sworn to before me this day of , A. D. 

18—. A. T„ 

Justice of the Peace. 



284 



KOADS AND BRIDGES. 



[DIV. VI. 



Contents 
of account. 



Overseers to 
pay over 
money. 



Neglect to re- 
port or pay 
over money. 



Penalty. 



Commissioners 
to prosecute. 



List to be laid 
before supervi 
sors. 



Cook county. 



Compensation 
of overseers. 
SI .50 per day. 



First — The names of all persons assessed to work on the 
highways in the district of which he is overseer. 

Second — The names of all those who have actually worked 
on the highways, with the number of days they have actually 
worked. 

Third — The names of all those who have been fined, and 
the sums in which they have been fined. 

Fourth — The name of all those who have commuted, and 
the manner in which the moneys arising from fines and 
commutations have been expended by him. 

Fifth — The amount of uncollected road tax which he has 
returned to the supervisors of the town, as required in section 
forty -three of this act. 

Sec. 47. Every such overseer shall also, then and there, 
render an account, in writing, of all moneys in his hands by 
virtue of his office, and shall also pay over the same to his 
successor in office. 

Sec. 48. If any overseer shall refuse or neglect to render 
such account, or if, having rendered the same, he shall refuse 
or neglect to pay any balance which may then be due from 
him, he shall, for every such offense, forfeit the sum of five 
dollars to be recovered, with the balance of the moneys remain- 
ing in his hands, by the commissioners of highways of the 
town, and to be applied in making and improving the roads 
and bridges. It shall be the duty of the commissioners to 
prosecute for such penalty, in every instance in which no 
return is made. 

Sec. 49. It shall be the duty of the supervisors of the several 
towns to receive the list of the overseers of highways when deliv- 
ered, pusuant to section forty - four of this act, and to lay the 
same before the board of supervisors of the county. 

Sec 50. It shall be the duty of the board of supervisors, 
and in Cook county the county board, to cause the amount of 
arrearages of road tax returned by the overseer of highways 
to the supervisors, as provided in section forty -three of this 
act, to be levied on the lands returned, and to be collected in 
the same manner that other taxes of county are levied and 
collected, and to order the same, when collected, to be paid 
over to the commissioners of highways of the town, to be by 
them applied to the construction of roads and bridges. 

Sec 51. Each and every overseer of highways shall be 
entitled to one dollar and a half per day for every day he is 
necessarily employed in the execution of the duties of over- 
seer, exceeding the amount of his highway labor and road tax, 
the number of days to be accounted to and audited by the 



DIV. VI.] REGULATIONS AND PFNALTIES. 285 

commissioners of highways : Provided, that the number of proviso, 
days to be audited shall be left discretionary with the commis- 
sioners of highways* 

Sec. 52. The legal voters of any township in the State, in when road tax 
counties where township organization has been or may here- Kedlnmon- 
after be adopted, may, by a majority vote, at their annual ey only, 
town meeting, provide that thereafter the road tax assessed by 
the commissioners of highways, under the provisions of this 
act, be collected in money only, to be expended by the com- How expended 
missioners of highways in such townships, on roads within 
their jurisdiction, by such agents or officers as they shall 
direct, and in such manner as they shall direct. 

Sec. 53. The town clerk of each town shall, on or before Town clerk to 
the first day of September next, and annually thereafter (if {Sfwhen? 
the boundary line be changed), furnish to the county clerk a 
certified plat of the several road districts of his town. 

Sec. 54. In all counties acting under township organization, County clerk to 
the county clerk, in extending district road tax upon the tax what district 
books, shall designate to what district said tax belongs. 

Sec. bo. It shall be the duty of county and township col- Abstract to road 
lectors to make out an abstract of the amount of district road delivered to 
tax due to each district of the respective townships, and commissioners 
deliver the same to the treasurer of the commissioners of of highways. 
highways. 

Sec. 56. The commissioners of highways shall pay over the District road 
district road tax according to the abstracts as furnished above, {o1-oad be paid 
to the various overseers of roads in their respective districts, overseers, 
to be applied on the roads of said districts. 

REGULATIONS AND PENALTIES. 

Sec. 57. For destroying or defacing any guide -board, post Destroying 
or milestone, or any notice or direction put up on any bridge or g ui de-t>oaid. 
otherwise, the offender shall forfeit a sum not less than three Penalty, 
dollars nor more than fifty dollars. 

Sec. 58. If any person shall injure or obstruct a public road obstructing 
by falling a tree or trees in, upon or across the same, or by lgnva5S * 
placing or leaving any other obstructions thereon, or by en- 
croaching upon the same with any fence, or by plowing or dig- 
ging any ditch or other opening thereon, or by turning a 
current of water so as to saturate or wash the same, or shall 
leave the cuttings of any hedge thereupon, for more than five Penalt y- 
days, shall forfeit for every such offense a sum not less than 
three dollars nor more than ten dollars, and in case of placing 
any obstruction on the highway, an additional sum of not 



286 ROADS AXD BRIDGES. [DIV. VI. 

exceeding three dollars per day for every day lie shall suffer 
such obstruction to remain after he has been ordered to remove 
the same by any of the commissioners of highways, complaint 

Proviso. to be made by any person feeling himself aggrieved : Provided, 

this section shall not apply to any person who shall lawfully 
fell any tree for use, and will immediately remove the same 
out of the road, nor to any person through whose land a public 
road may pass, who shall desire to drain his land, and shall 
give due notice to the commissioners of such intention: And, 

Further proviso p rov {,( Cl ^ furtlter, that any commissioners or overseers of high- 
ways, after having given reasonable notice (to the owners) of 
the obstruction, or person so obstructing or plowing or digging 
ditches upon such road, may remove any such fence or other 
obstruction, fill up any such ditch or excavation, and recover 
the necessary cost of such removal from such owner or other 
person obstructing such road aforesaid, to be collected by said 
commissioners before any justice of the peace having 
jurisdiction. (1) 

(1) When one obstructs a road which is used by the public for even the shortest 
period of time, he does so at his peril, for if it should be made to appear that such 
road was legallv established, he would be accountable whether he had actual know- 
ledge of the fact or not. Ferris v. Ward, 4 Gilm. R., 499. 

The fact that a road is little used does not authorize a party to close it up. Dumars 
y. Francis, 15 111. R., 543. 

A party may remove a fence erected across a highway, if it has before the erection 
of the fence, been duly opened, without being guilty of trespass. Marcyx. Taylor, 
19 111. R., 634. 

There is a difference between the offense of obstructing a highway, and continuing 
an obstruction. Crosby v. Gipps, 19 111. R.. 3:0 ; Bickerdike v. Dean, 21 111. R., 199. 

A party is not liable, as a matter of course, to the highest penalty imposed lor ob- 
structing a highway. Leech v. Waugh, 24 111. R.. 229. 

A temporary obstruction would not necessarily be deemed an obstruction of the 
highway so ai to incur the penalty, unless it appeared to be done with intent to prevent 
the free use thereof. Wyman v. The State, 13 Wis. R., 663. 

A street of an unincorporated town or village, when dedicated, is a public highway, 
and any person obstructing it will be liable to the statutory penalty. Otherwise, if 
incorporated, as then the streets are vested in the town, and are subject to the cor- 
porate authorities. Leech v. Waugh et al., 24 111. R., 228. 

All the land within a highway fence is not necessarily subject to the right of wav; 
and if not it may be occupied by the owner; and if he places an obstruction there 
and another is injured by it he is not thereby liable; and it is held that thousrh 
such obstruction be within the highway, he is not liable, unless the person injured 
exercised ordinary diligence to avoid it. 6 Cowen R.. 189. Yet he would be other- 
wise liable for obstructing the highway. See 5 Gilm. R., 371. 

Where the owner of the soil dug a raceway across a road to conduct water to his 
mill, it was held that he must restore it to a traveling condition, and if anv injury 
occurred, though he used the utmost care to prevent it. he was liable in damages; 
that the right of the owner depended upon mere sufferance; whenever an injurv 
occurred the raceway would be adjudged a nuisance. Dygert v. Schenck, 23 Wend. 
R., 446. 

But there is no such thing as a prescriptive right, or anv other right, to maintain a 
public nuisance. Philadelphia, etc.. R. E. Co. v. State, 20 Md. R.. 157. 

It is a legitimate use of a street or highway to allow a railroad track to be laid in 
it. Murphy v. City of Chicago, 29 111. R., 280. 

A private corporation is liable to an action for an injury to a traveler from an 
obstruction placed by it in away built and kept in repair "by it. and used by the 
public so as to have become a public wav, although the corporation was not author- 
ized by its charter to build it. Taylor v. Boston, etc., Co., 12 Gray R. (Mass.). 415. But 
an indictment could not be maintained unless the road was shown to be a public 
highway. State v. Price, 25 JId. R.. 449. 

Highways, whether on land or water, are designed for the accommodation 
of the public for travel or transportation, and any unauthorised or unreasonab 



DIV. VI.] REGULATIONS AND PENALTIES. 287 

Sec. 59. If any person shall purposely destroy or injure injury to 
any public bridge, culvert or causeway, or remove any of the n ^^ r amisdc " 
timber or plank thereof, or obstruct the same, he shall forfeit 
a sum not less than three dollars nor more than one hundred Penalty, 
dollars, and shall be liable for all damages occasioned thereby, 
and all necessary costs of rebuilding or repairing the same. 

Sec. 60. All suits for the recovery of any fine or pen- Mannerof 
alty under this act, shall be brought in the name of the town JJj ngi P g s " it8 
in which the offense is committed, and it shall be the duty of of fines, 
commissioners and overseers of highways to seasonably prose- in name of 
cute for all fines and penalties under this act ; but in case of a towu * 

obstruction thereof, is, in legal contemplation, a public nuisance. Garrishlv. Brown, 
51 Maine K.. 256 Columbus v. Jaques, 30 Ga. R., 506. 

Where a bridge over a navigable stream is built for public uses, and produces a 
public benefit, and leaves a reasonable space for the passage of vessels, it is not 
.indictable. Mississippi, etc., R. li. Co. v. Ward, 2 Black. R. (U. S.), 485. 

In an action to recover a penalty for obstructing a highway, it was held 
that it is not necessary to produce record evidence of the road ; and if such evidence 
is introduced, as for instance the order establishing the road, it is not necessary prior 
to the introduction of such order, to show that all the previous steps required by the 
statute had been taken ; but that the presumption is, that the antecedent proceed- 
ings have been regular, which presumption, however, is subject to be rebutted. 
Isealy v. Brown, 1 Gilm. R., 10 : see also, S*ge v. Barnes, 9 Johns. P., 365. 

If the complainant gives a local description, sufficient to fix the precise point ob- 
structed, and also the points of termination of the road, the latter may be disregarded. 
But when the allegation is general, that a road leading from one point to another 
has been obstructed, the existence of the road between the points named, must be 
proved as a matter of essential description. The defendant's guilt must be established 
by a clear preponderance of evidence, but not necessarily beyond a reasonable doubt, 
ai in the case of graver offenses. Town of Lewistown v. Proctor, 27 111. R., 414. 

It cannot be material to the defendant whether, in the order establishing the road 1 , 
damages were assessed to all the owners of the land along the route, so they were 
assessed to him, he being one of the owners. It might be that the other owners had 
released the damages, or were entitled to none. Clifford v. Town of Eagle, 35 111. R., 
444. 

A party may be indicted for obstructing a public road, but for continuing r an 
obstruction he should be prosecuted civilly for the penalty, after he shall have been 
ordered to remove it. Under an indictment for obstructing a road, he can not be 
convicted for continuing an obstruction. These are distinct offenses. Lowe v. Peo- 
pic, 28 111. R., 518. He should at any rate have notice to remove the obstruction. 
Sweeney v. The People, 28 111. R., 208. 

On a trial under an indictment for obstructing a highway, the questions whether 
the road was ever worked or recognized by the public authorities, or whether the 
road was ever used as a public highway, are proper, and the answers should be ad- 
mitted in evidence. The description of the road in the indictment is material, and 
must be proved as laid. The description of a road as leading from A to B is suffi- 
cient. Martin v. People, 23 111. R., 395. 

An indictment for a nuisance, in so placing a building that, it encroaches on a 
highway, need not designate what part of the building so encroaches. State v. Atk- 
ertoa, 16 W. H. E., 203. 

A road only one mile long, and from ten to fifteen feet wide, leading from a public 
highway to a church, and used by the people of the neighborhood for sixty years in 
going to and from the church, and which connected with a country road leading to 
a mill in the neighborhood, and to a railroad station, but which had never been 
under the charge of an overseer, nor worked as a public highway, is not a public 
highway so as to subject one to indictment for obstructing it. State v. Mc Daniel, 
8 Jones L. (N. C.) 284. 

In an action of tort for obstructing a right of way, damages for the consequent 
diminution of rents cannot be recovered, unless specially alleged in the declaration. 
Adams v. Barry, 10 Gray R. (Mass.). 361. 

A resort to chancery is proper, and more effectual than the remedy at law, 
where an injury of a public nature is threatened, as the inclosure of a highway, 
whereby public travel is in danger of being interrupted, and thereby great numbers 
of the citizens subject to pettv loss and annoyance, by reason of such obstruction. 
Craig v. The People ex rel., 47 111. R., 487. 

But where the nuisance complained of is the mere obstruction of a highway, the 
remedy at law is complete. If. in such a case, however, it were found that there 
was no sufficient remedy at law, it might be that equity would interpose. Dunning 
X.City of Aurora c* ctf.,40 111. R., 481. 



288 



ROADS AXD BRIDGES. [DIV. VI. 



Commissioners failure of said officers to so prosecute, complaint may be made 

to prosecute. hj any persQn whatever . 

Fines paid to ^ EC# ^1- ^ fines rec <> vere( l under the provisions of this 
commissioner act, unless otherwise provided, shall be paid over to the com- 
how^xpenled! missioners of highways of the town where the offense is com- 
mitted, to be expended upon the roads and bridges in the town, 
shade trees Sec. 62. It shall be lawful for the owners or occupants of 

and hedges. j an( j bordering upon any public road, to plant shade and orna- 
mental trees along and in such road, at a distance not exceed- 
ing one-tenth of the legal width of the road from its margin; 
and also to erect and maintain a fence, so long as shall be 
actually necessary for the purpose of raising a hedge on said 
margin, a distance of four feet from and within said marginal 
lines. 
crossings un- Sec. 63. Any person owning, using or occupying lands on 
der highways, both sides of any public highway, shall be entitled to the privi- 
lege of making a crossing under said highway for the purpose 
of letting his cattle and other domestic animals cross said road : 
Proviso. Provided, said person shall erect, at his own expense, a good 

and substantial bridge, with secure railing on each side thereof, 
and build an embankment of easy grade on either side of said 
bridge; said bridge not to be less than sixteen feet wide, and 
to be approved by the commissioners of highways of the town 
in which the bridge is built, and the same to be kept constantly 
in good repair by the owner or occupant of said land, subject 
to their direction : And provided, further, that in case such 
crossing is made on any water-way or natural channel for 
water, and where a culvert or bridge is maintained or required 
for road purposes, said owner or occupant shall not be required 
to pay for or construct any more of said crossing than the addi- 
tional cost of such crossing over and above the necessary cost 
of a suitable culvert or bridge for road purposes at such 
place, 
when owner of Sec. 64. And where any bridge on a public road is con- 
nect road fence structed over a stream or body of water, where the depth or 
to bridges. current of water, or the nature of the bank or banks of such 
stream or body of water is such as to render a fence on the 
marginal line of the public road impracticable or very expen- 
sive to construct and keep in repair, the owner of the land 
bordering on the public road shall have the right to connect 
the road fence on either or both banks of the stream or body 
of water, to said bridge or any pier or abutment thereof, or to 
any embankment or timber approach to said bridge : Pro- 
vided, that no necessary ford across said stream or body of 
water shall be permanently obstructed thereby : And, pro- 



DIV. VI.] REGULATIONS AND PENALTIES. 280 

videdj further, that any such connecting fence shall be con- Further pro- 
structed by the consent and under the direction of the com- V1S °* 
missioners of highways of the town in which the bridge may 
be located. 

Sec. 65. All public highways laid out by order of the com- width of high- 
missioners of highways, or supervisors, on appeal, shall not be ways ' 
less than fifty feet, nor more than sixty -six feet wide. 

Sec. 66. The commissioners of each town may, when they Riding over 
shall deem it advisable, put up and maintain, in conspicuous 'thkn^wau? 
places, at each end of any bridge in such town, maintained at 
the public charge, a notice with the following words, in large 
characters; "Five dollars fine for riding or driving on this 0tice " 
bridge faster than a walk." 

Sec. 67. Whoever shall ride or drive faster 'than a walk, Penalty. 
over any bridge upon which notice shall have been placed and 
shall then be, shall forfeit to the town, for every such offense, 
the sum of five dollars. 

Sec 68. The overseers of highways of the several towns Ditches, drains, 
are hereby authorized to enter upon any land adjacent to any etc ' 
highway in their respective districts, for the purpose of open- 
ing any ditch, drain, necessary sluice or water course, when- 
ever it shall be necessary to open a water course from any 
highway to the natural water courses, and to dig, open and 
clean ditches, upon said land for the purpose of carrying off 
the water from said highways, or to drain any slough or pond 
on said highway: Provided, that unless the owner of such Proviso 
land, or his agent, shall first consent to the cutting of such 
ditches, the overseer of highways shall apply to any justice of 
the peace of the county in which such road is situated, for a, 
summons directed to any constable of said county, command- 
ing him to summon the said owner to appear before the said justice's juris- 
justice, at a time and place specified in such summons, not dictiou - 
less than five nor more than fifteen days from the date thereof, 
for the purpose of having the damage assessed which such Assessment of 
owner may sustain by reason of the digging or opening of damages * 
such ditches or drains. The said summons shall be under the 
hand of such justice, and be served in the same manner as a 
summons is now served in civil actions before justices of the 
peace. On the return of such summons, a venire shall be 
issued for a jury as in other cases in the trial of civil actions 
before justices of the peace, which jury shall assess such dam- 
ages and render a verdict therefor, which shall be final and 
conclusive of the amount of damages sustained by such per- 
son ; and the amount so awarded shall be audited, levied, and 
collected in the same manner provided in section fourteen, 



290 



ROADS AND BRIDGES. 



[DIV. VI. 



article seventeen, of the township organization law, and the 
overseer of highways shall be warranted and is hereby empow- 
ered to enter such lands, and dig, open and clean such drains, 
ditches and water courses as aforesaid, for the purposes con- 
templated in this act, and is further authorized to use and 
employ the road labor and money of his district for such pur- 
poses : Provided, that in case the owner of said lands is a 
non-resident, service may be had by leaving a copy with the 
occupant or agent, or by notice in same manner as prescribed 
in section eighty -two (82) of this act. 



Proviso. 

Non-resident' 

owner. 



ALTERING, WIDENING, VACATING AND LAYING OUT ROADS. 



Altering, 
widening, 
vacation and 
laying out o* 
roads. 



Petition. 



Contents. 



Sec. 69. The commissioners of highways may alter, widen 
or vacate any road, or lay out any new road in their respective 
town, when petitioned by any number of freeholders, not less 
than twelve, residing within three miles of the road so to be 
altered, widened, vacated or laid out. 

Sec. 70. Said petition shall set forth, in writing, a descrip- 
tion of the road, and what part thereof is to be altered, widened 
or vacated, and if for a new road, the names of the owners of 
lands, if known, and if not known it shall be stated, over which 
the road is to pass, the points at which it is to commence, its 
general course, and the place at or near where it is to 
terminate. (1) 

(1) Form of Petition for the alteration of a Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the 
road known as [describe the road], do hereby petition yon to alter said 
road [or a portion of said road], as follows: commencing at [sta^e 

the place of commencing'] in said town of , and running the line of 

said road as follows : [state the manner in which the alteration of the line 
is desired,'] and your petitioners pray that you will proceed and alter 
said road accordingly. 

Dated at , this day of , 18—. 

Form of Petition for widening a Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the 

road known as [describe the road], the same being now; feet in 

width, do hereby petition you to widen the same to the width of 

feet, and your petitioners pray that you will proceed and widen said 
road accordingly. 

Dated at , this day of , A. D. 18— 

Form of Petition for vacation of Road. 
To the Commissioners of Highways of the town of, etc. 

The undersigned freeholders, residing within three miles of the 
road known as [describe tlie road], do hereby petition you to vacate 



DIV. VI.] ALTERING, WIDENING, VACATING AND LAYING OUT. 201 

Sec. 71, Whenever any such number of freeholders deter- copy of peti- 
mine to petition the commissioners of highways for the alter- JS|Jd. be 

ation, widening or vacation of any road, or laying out any 

said road [or so much of said road as lies in said town, or the follow- 
ing portion of said road, describing the portion,] and your petitioners 
prav that you will proceed and vacate said road accordingly. 
Dated at , this day of , 18—. 

Form of Petit ion for Xeiv J\oad. 

To the Commissioners of Highways of the town of , in the county 

of , State of Illinois : 

The undersigned freeholders, residing within three miles of the 
route hereinafter mentioned and described for a road, do hereby 
petition to you to lay out a new road of the width of feet, as fol- 
lows : commencing at the village of , in said town of , [at the 

end of street,] and running thence in a [north-easterly] direc- 
tion, on the most eligible route to intersect [the road, at or near 

the house of S. L.] The names of the owners of lands over which the 
same is to pass are A. B , C. D., and E. F. f and your petitioners pray 
that you will proceed to lay out said road and cause the same to be 
opened according to law. 

Dated at , this day of , A. D. IS—. 

Where the owners of lands over which the road is to pass pre not known, then that 
fact should be stated in the petition, which statement should be as follows: 

"The names of the owners of lands over which said road is to pass 
are not known to your petitioners." 

If a portion of the owners are known, and others not known, the statement can be 
as follows : 

" The names of the owners of lands over w T hich said road is to pass, 
as far as known to your petitioners, are A. B., C. D., etc. The names 
of the owners of the following lands which said road is to pass over, 
to wit: [here describe the land with reasonable certainty,] are unknown 
to your petitioners." 

On presentation of a petition to the commissioners of highways they should 
first examine and see that it is regular upon its face. If so, their next duty is to 
ascertain whether the requirements of the law have been complied with. If not, 
they will be justified in refusing to act. The law requires: First, that the petition 
shall be signed by not less* m th&n twelve freeholders.'.residing within three miles of the 
road proposed to be altered, widened, vacated or laid out. /Second, if it is to alter, 
widen or vacate a road, the petition must set forth a description of the road whicn it 
proposes to change, and, if a new road, it must set forth the names of the 
owners of the lands, if known, (and. if not known, it must be so stated,) over 
which it is to pass, the point at which it is to commence, its general course, and the 
place at or near where it is to terminate. Third, that a copy of the petition shall 
have been posted up in three of the most public places in the town, in the vicinity of 
the road to be laid out, altered, widened or vacated, at least twenty days before any 
action is had in reference to the petition. 

Upon the first point, the commissioners may satisify themselves from actual knowl- 
edge, or upon proper inquiry. The second will appear from the petition itself. Upon 
the third point it is competent to be shown by the affidavit of persons posting the 
notices, or bv other, legal evidence. Cassidy v. Smith, 13 Minn. R. Wells etal.v. 
Hicks, 27 111. R., 343. 

In a proceeding of this kind, when private rights are to be affected by the appro- 
priation of private property to public use, all the essential forms of the law must be 
rigidly observed, or the proceedings will not be sustained. New Orleans v. Sohr, 16 
La. An. R., 393. 

Where an application is made to commissioners of highways for laying out a road, 
etc., they may refuse to act and should do so unless, in their opinion, the applica- 
tion presented to them is regular and in accordance with the requirements of the 
law. If they err in their refusal to act, the remedy by mandamus is at hand. War- 
nick v. Orange Co., 13 Wend. R., 432. 



ins notice. 



292 ROADS AND BRIDGES. [DIV. VI. 

new road, they shall cause a copy of this petition to be posted 
up in three of the most public places in the town in the vicin- 
ity of the road to be laid out, altered, widened or vacated, at 
least twenty days before any action shall be had in reference 
Proof of post- to such petition. The posting of any notice required by this 
act may be proved by the affidavit of the person posting the 
same, or by other legal evidence. (1) 

The petitioners must be freeholders. The term " freeholder," mentioned in 
the statute, in its simplest signification, means one who is the owner of real estate. 
The petitioners must be freeholders of the town where the proceedings are to be had. 
If they reside out of the town, although within three miles of the road, thev are not 
lawful petitioners. Warne et al. v. Baker, 35 111. R., 382. 

It is no objection to a petition that more than twelve persons have signed it, and 
where twelve of the number are legal voters and reside within the town, it will be no 
objection because others whose names are upon the petition are not legal voters, or 
are not otherwise qualified. See Carmel v. Judges of Putnam Co., 7 Wend. R., 64. 

The commissioners can not proceed to lay out a road except upon a petition in 
writing by the requisite number of freeholders, and an order made by them, laying 
out a road without such petition, would be void. In case of contest as to the legality 
of the road, the petition itself is not evidence that the signers are freeholders. Har- 
rington v. People, 6 Barb. R., 607; Williams v. Holmes, 2 Wis. R., 129. 

But where the owners of land release all damages, and no private rights are affect- 
ed, the same strictness in regard to the petitioners would probably not be required. 
Marble v. Whitney, 28 N. Y. R. (1 Tiffany), 297. 

Tiie general course of the road petitioned'for, is designated by the petitioners, 
the particular route by the commissioners, and the latter may make such variations 
as they may think proper, provided the departure is not of such a character as to 
induce the court to suppose that these officers had wholly disregarded the prelimi- 
nary proceedings of the application. Hallockv. Woolsey, 23 Wend. R., 328; Jfeis v. 
Franzen, 18 Wis. R., 557. 

A highway must be laid out in conformity with the route described in the peti- 
tion, otherwise the doings of the road commissioners will be without authority and 
invalid. Cole v. Town of Canaan, 9 Foster R , 88. The distinctive marks of a high- 
way as petitioned for. are the points of beginning and termination ; the petition 
must be observed in this respect in la\ ing out the road. A highway, laid from one 
terminus described in the petition, about half wav to the other, cannot be said to be 
the highway petitioned for. Ford v. Banbury, 44 N. H R., 388. 

The bounds in a petition for the establishment of a highway from a certain place 
"to a point near the dwelling house of B," was deemed sufficiently definite in fix- 
ing the point of termination. Westporl v. County Commissioners, 9 Allen R. Olass.), 
203. 

Equity will not permit a road to be established through a township simply for the 
purpose" of procuring a road for a part of the distance, lor it would operate unjustly, 
if not as a fraud upon property holders. Green et al. v Green, 34 111. R., 32. 

Where commissioners were appointed by an act of the legislature to lay out a 
road on the most direct and eligible route, commencing at or near a certain village, 
and the road was laid out, commencing at a distance of sixty rods from the village, 
in a field where there was no road with which it could connect, and the rcv'jte, 
instead of being the most direct and eligible, was, as expressed by the court, strik- 
ingly injudicious; yet, notwithstanding these facts the court awarded a peremptory 
mandamus to the commissioners of highways of the town, to proceed forthwith to 
open and work the road as laid out by the State commissioners. It was held that 
the court would not collaterally review the doings of the commissioners, and hold 
as void the final determination made by them, in the exercise of their discretion or 
judgment. That the proper way of taking advantage of an error of this kind would 
be by a certiorari or writ of error, if no other mode of appeal is given by statute. 
People v. Collins, 19 Wend. R., 56. 

A. petition for a change in the location of certain parts of a road must set 
forth particularly the parts*proposed to be changed. Chartier's Boad, 48 Penn. State 
R., 314. 

A petition to alter a town line road between two points specified, so as to "avoid 
that swampy land, and lav the said highway either northward or southward, that 
is, either through town 1*7 or town 10. at the discretion of the commissioners, on 
good and dry land," designates with sufficient certainty the alteration asked for, to 
give the commissioners jurisdiction to proceed. Keis v. Franzen, IS Wis. R., 537. 

(1) The commissioners of highways should be satisfied that copies of the petition 
have been posted agreeable to this section of the law. An affidavit of the fact by 
the person who posted such copies, or who knows of the posting may be considered 
sufficient. The affidavit should be indorsed on the petition, and may be in the fol- 
lowing form : 



DIV. VI.] ALTERING, WIDENING, VACATING AND LAYING OUT. 



29-} 



Sec. T-. "Whenever the commissioners of highways shall qommis- 
.e any such petition, with the proof of the posting of f^ 11611 
copies, as in the next preceding section specified, they shall petition. 
fix upon a 'time when and where they will meet to examine 
the route of such road, and to hear reasons for or against the 



Vss. 



Form of Affidavit for posting copies of lload Petition. 

State of Illinois, 

County, 

J. N., being duly sworn, doth depose and say that he did on the 

day of , IS—, post up three copies of the within petition in 

the vicinity of the road [or proposed road] described in said peti- 
tion, as follows: [here state the place of posting,] in the town of , 

in said county, it being three of the most public places in said town. 

Subscribed'and sworn to before me, 1 J. N. 

this day of , A. I). IS— J 

S. W., Justice of the Peace. 

The law requires that a copy of the petition shall be posted; this will include the 
names of the petitioners subscribed to the petition. The law does not require a 
notice of the presentation of the petition, yet it may be proper to insert the follow- 
ing, at the head of the copies posted : 

" Notice is hereby given that the following is a copy of a petition 
which will be presented to the commissioners of highways after the 
expiration of twenty days." 

A copy of the petition must be posted up twenty days before any action can be had 
in reference to it. Commissioners v. Harper, 38 111. R., 104. 

To prove that copies of the petition were posted, it is not necessary to call as wit- 
nesses the parties who posted them. Their ex parte affidavits attached to the peti- 
tion are sufficient. Wells et al. v. Hicks, 27 111. R., 313. Yet other legal evidence may 
be introduced to prove such fact, if desired. 

Where the law requires a notice to be posted in one of the most public places of 
the town, and the plaee of posting seems to be a public place, the court will pre- 
sume, in the absence of any showing to the contrary, that the place of posting was 
one of the most public places in the town. Ttick v. Commissioners oj Carver Co., 11 
Minn. R., 292. 

The commissioners ore required to meet within twenty days after the expira- 
tion of the twenty days provided, to hear reasons for and against the objects sought 
by the petition. This requirement is not merely directory, but is peremptory; such. 
a meeting of the commissioners within that time, is essential to the validity of their 
action. A meeting twenty-three days after the expiration of the twenty days 
will not satisfy the requirements of this statute. Commissioners v. Harper, 38 111. R., 
104. 

In laying out highways, the commissioners as well as the supervisors, before whom 
the matter is brought on appeal, exercise special and limited jurisdiction, and 
although it may be presumed, till the contrary appear, that they have proceeded 
legally, yet their acts may be impeached by showing that they have exceeded their 
powers. 3 Hill R., 458. 

The laying out of a highway upon considerations other than the public good is 
held to be illegal. Thus, where a road was laid out by the commissioners, both 
because they thought the public gocd required it, and because G. and F. stated to 
them that if they would lay the road the petitioners would make it without any 
expense to the town; both of which Avere taken into consideration by the commis- 
sioners in deciding to lay thj3 road. Held, that a laying out upon such induce- 
ments would be clearly illegal. Gurnsey v. Edwards, 6 Foster R., 224. 

The commissioners of highways have no jurisdiction in the matter of laying out a 
highway which is not to be wholly within their town, unless under some express 
provision of law, as when the road is to be on the town line, and then they act in 
conjunction with the commissioners of the adjoining town. See case of Griffin's 
petition, 7 Foster (N. H.) R., 343. 

The laying out and opening of roads is not an exercise of judicial powers ; yet the 
presumption ordinarily is that the antecedent proceedings have been regular; 
which presumption, however, is subject to be rebutted. Jsealy v. Brown, 1 Gilm. 
R„ 10. 

But it is held in New Hamshire that the laying out of highwaj^s partakes of the 
character of judicial proceedings, and that such act is a judicial act. State v. Rich- 
mond, 6 Foster R., 232. 



294 ROADS AND BRIDGES. [dIV. VI. 

Examining altering, widening, vacating or laying out the same — which 
Sgreasons — r " meet i n S sna ^ ^ e within twenty days after the expiration of 
ten days' the twenty days required for the posting of the copies of the 

petition in the next preceding (71) section, and they shall give 
at least ten days' notice of the time and place of such meet- 
ing, by posting up notices in three of the most public places 
in the township, in the vicinity of the road to be widened, 
altered or vacated. (1) 
commissioners ^ec. ^* ^ e commissioners may, by public announcement, 
may adjourn and by the posting of a notice at the time and place named 
for the first meeting, adjourn the meeting from time to time, 
but not for a longer period than twenty days in all ; and shall, 
SmomSement at the first, or such adjourned meeting, within said twenty 
days, decide and publicly announce whether they will grant or 



or action on 
petition 



(1) Form of Notice of Commissioners, for time and place fixed for examin- 
ation of route, and hearing reasons for or against Road. 

niGHWAY NOTICE. 

A petition having been presented to the commissioners of high- 
ways of the town of , in the county of , to lay out a new 

road, [ or as the case may be,~\ upon the following described route, to 
wit : [ here describe the road as set forth in the petition.'] The said com- 
missioners do hereby give notice that they have fixed upon the 

day of -, 18 — , at the hour of — o'clock — M., at the 

house of J. D., in said town, as the time and place they will meet to 
examine the route of such road and to hear reasons for or against 
the laying out of the same, when and where all persons interested 
can be heard. 

Dated at , this day of , 18—. 

C. H.,~ ) Commissioners 

W. K., \ of 

C. L., J Highways. 

Notice must be given cf the meeting of the commissioners, and the want of it 
will vitiate their proceedings. This is essential to their jurisdiction. What is said 
to the contrary in Wells v. Hicks, 27 111. R., 345, is to be regarded as obiter dictum, and 
not binding as authority in the case. Commissioners v. Harper, 38 111., R., 104. 

The requirements of the statute in regard to the petition, notices, and the survey 
of the road and order of the commissioners, must be complied with, and where 
none of these facts were shown, and the road had never been opened or used, or 
regarded by road officers as a highway, a mandamus to show cause why damages 
snould not be allowed to a party through whose land a road was claimed to have 
been laid out, was refused. In such case the board of auditors have no authority to 
review the proceedings in laying out the road, except to see that they were not void 
for want of jurisdiction. For this purpose, it seems, they might review the proceed- 
ings. People v. Town Board of Lagrange, 2 Mich. R., 1ST: Austin v. Allen, 6 Wis. R., 
134 ; Babb v. Carver, 7 Id., 124 ; Teick v. Commissioners of Carver Co., 11 Minn. R., 292. 

Notice by posting is for the benefit of persons affected by the location of the road, 
as owners of the land, and is termed constructive notice. It is field that notice, 
actual or constructive, to the owner of land, of proceedings to lay out a public way 
across it, is indispensable, whether the statute provides for such notice or not, and 
where the law requires personal service, notice of proceedings to a vendor who sells 
the land while the proceedings are pending, is not notice to the vendee. Cuiran v. 
ShaUuck, 24 Cal. R., 427. 

The notice given by the commissioners before laying out a highway must, with 
reasonable strictness, comply with the language of the statute, and be sufficient to 
inform all persons interested of the time and place of meeting. A notice that they 
will meet at a certain time and place, "to lake info consideration the petition of D. C, 
and others for laying out a highway," does not comply with the statute, and a road 
laid out under such a notice would not be legal. Babb v. Carver,! Wis. R., 124. 



DIV. VI.] ALTERING, WIDENING, VACATING AND LAYING OUT. 295 

refuse the prayer of the petition, and shall indorse upon, or 

annex to the petition, a brief memorandum of such decision, 

to be signed by the commissioners. Such decision shall be Decision sub- 
,. & J , . ,, . • . • • J ect to revoca- 

subject to revocation, in case the prayer 01 the petition istion. 

granted, in the manner hereinafter provided. In case the com- 
misssoners refuse to grant the prayer of the petition, they Refusal to 
shall, within ten days thereafter, file the same, so indorsed, or st*m prayer of 
with such decision annexed thereto, in the office of the town 
clerk.(l) 

Sec. 74. If the petition is simply for the vacation of a vacation of a 
road, and the commissioners of highways, or a majority of them, road * 
shall, at such meeting, decide that the prayer of the petition- 
ers should be granted, they shall order such road to be vacated 

— a copy of which order, together with the petition, shall be to be filed with 
by them filed with the town clerk, such order to be so filed town clerk ' 
within ten days after the date of such decision. 

Sec. 75. If such petition is for the establishment of a new Establishment, 
road, or the alteration or widening of an existing road, and^^ 1 ™ 5£ ad 
the couimissioners of highways, or a majority of them, shall 
be of the opinion that the prayer of the petitioners should be gurvey and 
granted, they shall cause a survey and a plat of such road to plat. 
be made by a competent surveyor, who shall report such sur- 
vey and plat to said commissioners, giving the course and dis- Re ^ msites of - 
tances, and specifying the land over which said road is to pass 

— in which they may make such changes between the termini 

(1) Form of Notice of adjournment of Road Meeting. 

HIGHWAY NOTICE. 

Public notice is hereby given that the meeting of the commission- 
ers of highways of the town of , in the county of and 

State of Illinois, to examine the route of a proposed public road 
and to hear reasons for or against laying out the same [or, as the case 
may be], according to the petition of J. S., L. M. and others, as fol- 
lows : [here describe the route] which meeting was to be held, pursu- 

and to public notice at [state place] on the day of A. D. 

18 — , at — o'clock, — M., is hereby adjourned until the day of 

■ , A. D. 18 — , at — o'clock — M., at [stale the place] in said town. 

Dated this day of A. T>. — . 

R. M., 1 Commissioners 
S.P., \ of 

H. W., J Highways. 

Form of Memorandum of Decision granting or refusing Prayer of 

Petition. 
V\'e hereby grant [or refuse] the prayer of the within [or 

annexed] petition, this day of , A. I). 18 — . 

R. M., ) Commissioners 
J.S., [ of 

E. B., J Highways. 



296 



ROADS AXD BRIDGES. [dIV. VI. 



of the road described in the petition, as the convenience and 
interest of the public, in their judgment, may require.(l) 

DAMAGES MODE OF ASCERTAINING. 

Damages to be Sec. 76. They shall also, before they order any road to be 
ascertained, established, altered, widened or vacated, ascertain, as herein- 
after provided, the aggregate amount of damages which the 
owner or owners of the land over which such road is to pass, 
shall be entitled to, by reason of the location, alteration or 
Proviso. vacation of such road : Provided, however, that in case an 

appeal is taken from the assessment of damages before the 
justice of the peace, the commissioners may, in their discre- 
tion, make an order laying out, widening, altering or vacat- 

(1) Form of Surveyor's Report of Survey of Road. 

To the Commissioners of Highways of the town of , in the 

county of : 

The undersigned having been employed by you to make a survey 
of a road beginning, etc., [set fortii the road as asked for in the petition^] 
would report that the following is a correct survey thereof, as made 
by me under your directions, to -wit : [here set forth the survey, the 
course, distance, etc., as required by law,'] and that herewith is a correct 
plat of said road, according to said survey. 

Dated this day of , A. D. 18— 

G. R., 
County Surveyor of County. 

Form of Surveyor's Report of Survey of Alteration of Road. 

To the Commissioners of Highways of the town of , in the 

county of : 

The undersigned having been employed by you to make a survey 
of the alterations of a road beginning, etc., [here set forth the road and 
alteration as ashed for in the petition,'} would report that the following 
is a correct survey thereof as made by me under your direction, 
showing the line of alteration made, to wit : [here set forth the survey 
of the line of alteration, the corners, distances, etc., as required by lav:, not- 
ing briefly the points in the old road from which the alteration is made,] 
and that herewith is a correct plat of said alteration according to 
said survey, showing as well said alteration as the route of the old 
road. 

Dated this day of , A. D. IS—. 

G. R., County Surveyor of County. 

In the alteration of a road it is proper that the plat should show the location of the 
old road^as well as the line of the alteration. In some States this rule is imperative. 
Slate v. Lippencotl, 1 Dutch R. (N. J.), 434. 

The mere survey and platting of a road hy a surveyor, under the direction of 
highway commissioners, does not have the effect to establish it as a highway ; such 
a proceeding leaves the proof of the existence of the road precisely as it was before. 
It has, however, the effect to stop the public from claiming that the road was upon 
a different line from the survey. Gentlemany. Soule, 32 111. R., 272. 

It is not essential to the validity of an order of commissioners of highways, or of 
the three supervisors who may act on an appeal from such commissioners, estab- 
lishing a public highway, that the surveyor's plat, which the law requires shall 
appear, from such order, to have been signed by the surveyor. Tower et al. v. Pit- 
slick, 55 111., 15. 



DIV. VI.] DAMAGES — MODE OF ASCERTAINING. 207 

ing such road, either before or after such appeal is determined, 
in the manner hereinafter provided. 

Sec. 77. The damages sustained by the owner or owners of Damages may 
the land, by reason of the establishment, alteration, widening a Jd released. 01 ' 
or vacation of any road, may be agreed upon by the owners 
of such lands, if competent to contract, and the commission- 
ers of highways, or they may be released by such owners — in 
which case the agreement or release shall be in writing, and 
shall be filed and recorded with the copy of the order estab- 
lishing or altering such road, in the town clerk's office, and 
shall be a perpetual bar against such owners, their grantees 
and assigns, for all further claims for such damages. (1) 

(1) Form of Agreement as to Damages in laying out Road. 

Whereas a road was laid out on the day of— , A.D. 18 — , 

by L. K., G. B., and E. T., commissioners of highways of the town of 

, in the county of , on the application of the requisite 

number of freeholders, residing within three miles of said road, as 
follows : commencing, etc., [insert description of the road as in the order, ,] 
which road passes through the land of P. F., being known and de- 
scribed as follows : [here describe the land with reasonable certainty.'] 
Now, therefore, it is hereby agreed between the said commissioners 
and the said P. F., that the damages sustained by the said P. F., by 
reason of the laying out and opening said road upon his land, herein- 
before described, be liquidated and agreed upon at dollars. 

In witness whereof, the said commissioners and the said P. F., 

have hereunto subscribed their names the day of , A.D. 18 — . 

L. K., ) Commissioners 
G. B., \ of 

E. T., J Highways. 
P. F. 

Form of Release of Damages by Owner of Land. 

Whereas, a road having been laid out on the day of , 

18 — , by A. C., S. J., and R. W., commissioners of highways of the 

town of , in the county of , on the application of the 

requisite number of freeholders, residing within three miles of said 
road, as follows ; [insert description of the route as set forth in the order 
laying it out,] which road passes through certain lands owned by me, 
being known as follows : [here insert description of lands.] Now, there- 
fore, know all men by these presents, that I, A. G., for value received, 
do hereby release all claims to damages sustained by me by reason of 
laying out and opening said road through my said lands above 
described. 

In witness whereof, I have hereunto set my hand and seal this 

day of , A.D. 18 — 

A. G. [seal.] 
Executed and delivered \ 
in presence of J 
B.II. 

Concerning the taking of private, property for public use, the new Constitu- 
tion declares, that Art. 2, Sec. 13, " Private property shall not be taken or damaged for 
public use, without just compensation." Although the property may not bo 
actually taken, yet if it is damaged by the laying out and construction of the road, 
the constitution requires that compensation should be made. In common speech, 



298 



ROADS AND BRIDGES. 



[DIV. VI. 



Damages how 
ascertained, 
when not re- 
leased or 
agreed upon. 



Sec. 78. In case such damages are not released or agreed 
upon, as in the preceding section specified, the commissioners 
of highways shall, within (20) days from the date of the meet- 
ing at which it was decided to grant the prayer of the peti- 
tion, make a certificate that they are about to establish, widen, 
vacate or alter a public road, describing such road, vacation, 
widening or alteration, and the land over or on which such 
road is to be established, altered, widened or vacated, and 



the compensation awarded for the property taken is called the damages. The public 
is excluded from opening or using a road until the damages are assessed or agreed 
upon, or released in writing. Norton v. Studley, 17 111. R., 556. 

It has been held in New York that an act of the legislature, giving to commis- 
sioners of highways the power to lay out new roads through wild or unimproved 
lands, -without the consent of the owner, is unconstitutional and void, if no com- 
pensation is required to be made to such owner. Y/allace v. Karlenowfski, 19 Barb. R., 
118. Gould v. Glass, id., 179. 

The constitution does not require that the compensation shall be made in 
money. It may be that which is of value to the owner of the property. The advan- 
tages of the road may be considered as compensation to the extent which it 
enhances the value of the remaining propertv. Symonds v. City of Cincinnati, 14 
Ohio R., 147; Hatch v. Vt. Central B. B. Co.; Trinity College v. Hartford, 32 Conn. R., 
452. 

The commissioners' award should show that the question of damages was taken 
into account in regard to all the property taken, either by compensation in money, 
or by estimate of the advantages as given in the foregoing form of assessment of 
damages. 8 Minn. R., 491 : 10 id., 82 ; 13 111. R., 54. 

In case a highway is laid out, and the proceedings fail to show that damages were 
disposed of, it would probably be presumed, until the contrary was shown, that the 
advantages were considered equal to the damages. But before the road could be 
opened in such case, the owner could no doubt insist on his right to attempt to 
agree with the commissioners as to the damages ; and on failure to do so, he could 
probably insist on a specific determination and award by a jury, as provided by the 
statute. See Detroit v. County of Somerset, 52 Maine R., 210; Howland v. Commis- 
sioners, 49 id., 143. 

A party to whom damages have been awarded for the laying out of a highway 
through his land, has a right of action against the town therefor. A mandamus will 
also lie to compel the town to audit his claim. Van Vleit ex rel., etc., v. Wilson, 17 
Wis. R., 687. But it is doubtful if an action would lie in the absence of an award, 
unless it appeared that there had been an attempt on the part of the owner to agree 
with the commissioners on the damages. Lincoln v. Colusa County, 28 Cal. R.. 662. 

The right of taking private property for public use, as for a highway, is called the 
right of eminent domain, and may be exercised by the legislative power at all times, 
if just compensation is made to the owner. The aid of a jury, when compensation 
Is to be made by the State, is not necessary under the constitution of Illinois The 
Instrumentality of commissioners is proper. Johnson v. Joliet and Chicago B. B. Co., 
23 111. R., 202. 

The law imperatively requires the commissioners to adjust the question of dam- 
ages to the owner of the land, before the road shall be opened or worked or used. 
It does not require the owner to be present and claim damages, to entitle him to 
compensation. It is the mutual duty of the commissioners and the owner to 
endeavor first to agree as to the damages. If they cannot agree, it is the duty of the 
commissioners to have a jury impaneled to assess the damages at what may be just 
and right. The case of Taylor v. Marcy, 2r> 111. R., 518, on this subject is modified. 
An attempt to open a road in the absence of an adjustment of the question of dam- 
ages with the owner of improved and cultivated lands, upon which the road is 
located, will be restrained by a court of chancery. Commissioners of Highways v. 
Durham, 43 111. R., 86. 

It is held in New Hampshire, that the doings of selectmen in laying out highways 
cannot be supported, unless it appear that due recompense was allowed to the 
owners of lands through which such highway was laid out, and that the owners 
had an opportunity to be heard upon the subject of damages. Pntchard v. Atkins, 
3 N. H. R.. 335. See also Curran v. Shattuck, 24 Cal. R.. 427. 

When land is alleged to be injured by the location and opening of a highway 
through it, the measure of damages will be the difference between its market value, 
at the time, with the highway, and its market value without the highway. Sidner 
V. Essex, 22 Ind. R., 207. 

Where a road is ordered to be laid out through lands belonging to an estate, 
an assessment of the damages to the heirs of such an estate, is proper and legal. In 
such case, separate damages cannot be assessed to the Avidow on account of an un- 
assigned dower interest. An adjustment of the equities between the fee and the con- 



DIV. VI.] DAMAGES — MODE OF ASCERTAINING. 299 

naming the owners of such lands, if known, and if not known, 
stating the fact and asking for a jury to assess the damages of 
such owners, and shall present such certificate to some justice 
of the peace of the county, who shall summon a jury of six Jury of six. 
persons in the manner hereinafter provided, having the quali- 
fications of jurors, to appear before such justice at a time to be 
fixed by him, within ten days from the time such certificate 
was presented to him to assess such damages. (1) 

tingent right of dower, must be left to the widow and the heirs. Tedemier et al. v. 
Aspinwalt et al., 43 111. R., -401. 

After the owner of land has accepted the damages awarded to him for opening a 
highway on his land, it is too late lor him or his grantee to claim that the proceed- 
ings for opening it are invalid. Town v. lovon of Backberry, 29 111. R., 137. 

Where a highway is laid out along the line of a farm, taking no portion of the land 
of the owner, but subjecting him to the expense of maintaining the whole of the 
fence, the expense of the half of which only was formerly borne by him, such owner, 
under ,the existing highway act, is not entitled to compensation ; and although 
damages are allowed to him, the supervisors of the county have no authority to 
cause the same to be collected. People v. Sups. Oneida Co.. 19 Wend. R., 120. 

The right of the owner to the damages assessed becomes fixed and vested 
as soon as assessed : and it is held that such right cannot be divested by a subsequent 
repeal of the statute under which the damages were assessed : that the public use ' 
of a highway being but an easement, subject to which the owner of the land over 
which it passes retains his title, there is always a contingency by which the owner 
may return into full possession of the land, on its being no longer required by the 
public. When this contingent event will happen is ordinarily unknown and is) 
wholly immaterial, as regards the rights of the landholder, whether the public 
retains the use of the land for a century, or for a year, or but for a single dav, can- 
not affect his title to a compensation. The People ex rel. Fountain and others v. Super- 
visors Winchester Co., 4 Barb. R., 276. 

Held also in Massachusetts, that where damages upon laying out a road have been, 
assessed or awarded to an individual, the town would be liable for the amount there- 
of, although the road had been discontinued before payment, and in fact never 
entered upon ; that the owner had a vested right to such damages, and was entitled 
to a writ of mandamus to compel payment. Harrington v. Berkshire, 22 Pick. R., 263v 

The fee of the land in the highway, whether it be laid out by law or granted 
by the owner for a highway, remains in the owner, and he^may maintain an action, 
of trespass for cutting timber therein, or for any exclusive appropriation of the soil. 
He is entitled to the same remedies for an injury to his residuary interest that he 
would be entitled to if it was entire and absolute. Babcock v. Lamb,l Cowen R., 238; 
Gidney v. Bade, 12 Wend. R., 98; 3 Hill R., 567. But it is otherwise in case of streets 
dedicated by a town plat duly recorded. Hunter v. Middleton, 13 111. R., 50. 

As a public highway is a mere easement and the seizing and right to convey still 
continue in the owner of the land over which it is laid out, it is no breach of the 
covenant of seizin and power to convey contained in the deed, that part of the land 
conveyed was a highway and used as such. Whitbeek v. Cook, 15 Johns. R., 483. 

Tlie tietv constitution declares, Art. 2, g 13. that " the fee of land taken for rail- 
road tracks, without consent of the owners thereof, shall remain in such owners, 
subject to the use for which it is taken." 

(1) Form of Commissioners' Certificate and Application for a Jury. . 
State of Illinois, \ 

County, J 

To , Esq., a Justice of the Peace of said County : 

This is to certify that we are about to lay out [or as the case may be,~\ 
a public road described as follows, to wit : Beginning [describe the 
route as set forth in the petition,'] which said road passes over and is 
supposed to damage the lands described and owned as follows, to 
wit: [here describe the lands and state the names of owners, if known; if 
oimers are unknovm, or non residents, state the facts.] That we have not 
been able to agree with [state names of owners disagreeing with the com- 
missioners,] owners, as aforesaid, as to the damages sustained by them 
by reason of the proposed laying out [or as the case may be,] of said 
road over their lands, nor have said damages been by them released. 
We, therefore, ask for a jury to assess the damages of said owners. 



300 



EOADS AND BRIDGES. 



[DIV. VI. 



Notice to own- 
ers of applica- 
tion for jury. 



Impaneling 
jury. 



Proviso. 



Challenge. 



Sec. 79. The commissioners of highways shall also notify 
each and every owner of land — if known, and a resident of 
the county — whose damages are to be assessed, that they will 
apply to some justice of the peace of the county (giving the 
time when and place where) to have a jury impanneled to 
assess such damages. (1) 

Sec. 80. Upon the presentation of such certificate by the 
commissioners of highways, the justices of the peace shall 
forthwith name eighteen persons having the qualifications of 
jurors, two -thirds of whom shall not be residents of the town 
in which the proposed road is located. The commissioners of 
highways shall have the right to strike from such list of names 
the names of six of such persons named, and the owners of 
the lands whose damages are to be assessed, or their author- 
ized agent or agents, shall also have the right do strike from 
such list the names of six other persons. The striking from 
the list of said names shall be done alternately, one at a time, 
by the commissioners of highways and the claimants, the 
commissioners beginning first ; and the six persons whose 
names still remain on said list, shall comprise the jury to 
assess such damages : Provided, that if the commissioners of 
highways and the owners of lands shall fail to strike from such 
list the names of twelve persons, the justice of the peace shall 
select from the names still remaining, the six persons to con- 
stitute said jury. 

Sec. 81. At the trial of the case, either party shall have 
the right of challenge for cause, and for that only ; and any 
deficiency in the number of jurors, from whatever cause, shall 



Given under our hands this • 



■day of- 



E.M. 
A 

E 



.B.J 



i. D. IS—. 
Commissioners 
of 
Highways. 



(1) Form of Notice to Land Owners of Application for Jury to Assess 

Damages. 
State of Illinois, \ 

County. J 

To E. B. : 

This is to notify you that on the day of , A. D. 18 — , at — 

o'clock — M., we, the undersigned, commissioners of highways of 

the town of in said county, shall apply to L. M., Esq., a justice 

of the peace of said county, at , to have a jury empaneled to 

assess the damages to which you may be entitled by reason of the 
laying out of a public road [or as the case may be~\ over certain land 
by you owned, as by us determined. 

'Given under our hands this day of A. D. IS — . 

J. K., ) Commissioners 
S. M., \ of 

A.T., J Highways. 



PIV. VI.] DAMAGES — MODE OF ASCERTAINING. 301 

be supplied by summoning other persons residing in the town- supplying den- 
ship, or in an adjoining township, in the same manner as in a^ e e r ncym num * 
civil case. Such justice of the peace shall notify the owners 
of such land mentioned in such certificate to appear at the Owners noti- 
same time before such justice to prove their damages.(l) c oappear - 

Sec. 82. In case it shall appear either from the certificate unknown own- 
of the commissioners, the affidavit of any person, or the ers - 
return of any officer to whom the notice may be delivered for 
service, that there is an unknown owner or owners who can- 
not be found and served within the county, such justice shall 
also cause notice to be posted in three of the most public Notice^tojiow 
places in the vicinity of such proposed road or alteration, at requisites of. 
least six days before the time fixed for the appearance of such 
jury, stating when such jury is to be impanneled by him, and 
describing the road to be established, altered, widened or 
vacated as petitioned for, and the lands for which damages 
are to be assessed. 

Sec. 83. The notice to such owners of lands may be served by Notice to 
any constable or one of the petitioners, or other person of law- J^|J S » how 
ful age, at least five days before the time of appearance. If 
any of such owners is an infant, such summons shall be served infants, luna- 
by delivering a copy to the infant or its guardian, if any ; dSnkards. 
if no guardian, the person with whom he or she resides. If 
any owner is a lunatic, or habitual drunkard having a conser- 
vator,- or insane, by delivering a copy to his conservator, if 
any ; if any such owner is a married woman, by delivering a JJjJJwJ 
copy to her. 

Sec. 84. The jury shall appear before and be sworn orj urysworn , 
affirmed by such justice, faithfully and impartially to assess 
the damage of each of the owners specified in such certificate, 

(1) Form of Justice's Notice to Land Owner to prove Damages by Laying 

out of Road, etc. 
State of Illinois, \ 

County. j 

To Mr. J. L. : 

Whereas, the commissioners of highways of the town of have 

presented to me a certificate stating that they are about to lay out a 
public road, [or, as the case may be] over certain lands therein 
described, and asking for a jury to assess the damages to which the 
owners of said lands may be entitled by reason of the laying out of 
said road over the same [or as the case may be,] in which certificate 
you are named as the owner of certain of said land, to wit : [describe 
the lands.'] You are therefore hereby commanded to appear before 

me at on the day of , A.'D. 18 — , to prove the damages 

by you sustained in the premises. 

Given under my hand this day of , A. D. 18—. 

A. B., 
Justice of the Peace. 



302 ROADS AND BRIDGES. [DIV. VI. 

Trial. or tliose of them whose claims are then to be adjusted, accord- 

ing tp law to the best of their judgment and understanding, 
and all parties in interest shall be entitled to subpoenas and 
other writs and papers, and the trial shall be conducted as in 
other civil cases. 
Evidence. Sec. 85. The jury shall hear such lawful evidence touching 

the question of such damages as may be presented to them ; 
and shall also, on request of a majority of the road commission- 
ers or owners of lands whose damages are to be determined, m 
jury may visit a bod} r , visit and examine the proposed location, alteration, 
location. widening or vacation of such road, and the lands to be taken 

written verdict anc [ e ifected thereby, and make a written verdict specifying 
the amount of damages, if any, which each such owner shall 
recover, and return the same to such justice, to be by him 
entered on his docket in the nature of a judgment, to be paid 
by such commissioners, together with the costs of such suit, 
in case they shall finally determine to establish, alter, widen or 
Assessment of vacate such road ; and the money therefor shall be paid by the 
damages. town, out of the funds in the hands of the treasurer of the 
commissioners of highways, raised for road and bridge purposes : 
Proviso— that Provided, that in estimating the damages, the jury mav con- 

iurv mav or . ^ 

may not con- sider the benefits conferred, or may disregard such benefits; 

sider benefits, j^ nQ |3 exie fits enjoyed in common by the owners of surround- 
ing property shall be considered in estimating damages. 

Several owners. Sec. 86. Provided, that when there are'several such owners 
the jury may assess the damages, or one or more or all of them 

Damage, how a t the same time, or they may assess such damages at different 
times, or there may be different juries and trials at different 
times for different owners if any owner shall demand a separate 
trial ; and any such assessment of damages may be continued 
from time to time for good cause, with the like effect as con- 
tinuances in other cases before justices of the peace. (1) 

(1) Form of Verdict of Jury assessing Road Damages. 
S tate of ^llixois, j BefQre A B ^ Jugtice of the p eace _ 

VERDICT OF JURY. 

In the matter of the Assessment of Damages consequent upon the 
laying out [or as the case may be~] of a road over lands described 
and owned as follows, viz. : 

D escription of Land. | Owned by 

1 ~~ 

"We, the jury summoned to assess damages in the above cause, 
having taken the oath required by law, and having heard the evi- 
dence presented, and having in a body visited and examined [if such 
is the fact] the location of the said road, the lands to be taken and 



DIV. VI.] DAMAGES — MODE OF ASCERTAINING. 303 



, of commis- 
sioners. 



SBC. 87. Within thirty days after the total amount of Fjnai meeting 
damages shall have been ascertained, either by release orj~ 
agreement of the parties, or by assessment before a justice 
and a jury, in the manner hereinbefore provided, the commis- 
sioners shall hold a meeting to finally determine upon the 
laving out, altering, widening or vacation of such road, of 
which meeting said commissioners shall give public notice, by Notice, 
causing not less than three notices thereof to be posted in 
pu*blic places within the town, at least five days prior thereto.(l) 

Sec. 88. In cases where the damages are not wholly Revocation of 
released or agreed upon, and the commissioners shall be of proceeding, etc. 
the opinion that the damages assessed by the jury are mani- 
festly too high, and that the payment of the same would be 
an unreasonable burden upon the taxpayers of the town, the 
commissioners may revoke all proceeding had upon the peti- 
tion by a written order to that effect. And such revocation Effect of 
shall have the effect to annul all such proceeding and assess- 
ments, releases and agreements, in respect to damages grow- 
ing out of the proceedings upon the petition. (2) 

affected by the proposed laying out of thetsame [or as the case may be], 
do assess the damages at what we deem just and right to each of said 
claimants [having first estimated and deducted the advantages and 
benefits, or as the case may be], as follows, viz.: 

To the said C. D., the sum of dollars ; 

To the said E. F., the sum of dollars [and so on]. 

The above verdict given under our hands, this day of 

A. D. 18— . 

[Signed by all the jurors.] 

(1) Form of Commissioners' Notice for Final Meeting. 

HIGHWAY NOTICE. 

Notice is hereby given that the undersigned, commissioners of 

highways of the town of , in the county of , and State of 

Illinois, will meet on the day of , A. D. 18 — ., at o'clock 

— M., at [state the place of meeting], to finally determine upon the 
laying out of a road [or as the case may be], described as follows, to 
wit : 

Beginning [here describe the road], the petition for which road has 
been heretofore considered and the prayer thereof granted, the 
route surveyed and the damages consequent upon the laying out 
of the same [or as the case may be], having now been ascertained. 

A B 1 

j.' k! !■ ~ Hi s hwav 



3 

(2) The order revolting proceedings upon a road petition for the reasons 
mentioned in this section may be indorsed on the petition, and may be in the fol- 



j jmt i Commissioners. 



lowing words : 

" We hereby revoke all proceeding had upon the within petition, 

this day of , A. D. 18 — . R. P., ) Commissioners 

J. K., \ of 

L. M., J Highways. 



304 ROADS AND BRIDGES. [dIV. VI. 

Sec. 89. In case the commissioners shall not revoke such 
commissioners V rior proceedings they shall make an order, to be signed by 
revocation 11011 " tnem > declaring such road altered, widened or laid out a pub- 
lic highway, and which order shall contain or have annexed 
thereto a definite description of the line of such road, together 
with a plat thereof. The commissioners shall, within ten 
days from the date of such order, cause the same, together 
with the report of the surveyor, the petition and releases or 
agreements in respect to damages, to be deposited and filed in 
the office of the town clerk, who shall note upon such order 
the date of such filing. It shall be the duty of such clerk, 
after the time for appeal to supervisors has expired, and in 
the case of such appeal, after the same shall have been deter- 
mined, in case the prayer of the petition is granted, to record 
such order, together with the plat of the surveyor, in a proper 
book to be kept for that purpose.(l) 

(1) Form of order Laying out, Altering or Widening Highway where 
Damages are Assessed. 
State of Illinois 



ate of Illinois, ") 

County, |- 

)wn of , J 



Town 

Whereas, on the day of , A. D. 18 — , we, the commission- 
ers of highways of said town, received a petition in writing, of [here 
state the names of the petitioners'] praying for the laying out [or alter- 
ing, or widening] of a road as therein and hereinafter described, said 
petitioners being freeholders residing within three miles of the said 
road [or proposed road]; and it appearing from legal evidence that a 
copy of said petition had been posted up in three of the most public 
places in said town, in the vicinity of the road to be laid out [or as the case 

may be] not less than ten days before the day of A. D. 18 — , we 

did upon said day of A. D, 18—, fix upon the day of 

A. D. 18 — , as the time when and [here state the place of meeting] as 

the place where we, the said commissioners of highways, would meet 
to examin the route of said road, and to hear reasons for and against 
the laying out of the same [or as the case may be] and gave ten days' no- 
tice of the time and place of such meeting by posting up notices thereof 
in three of the most public places in said town, in the vicinity of said 
road [or proposed road] ; and having met at the time and place ap- 
pointed [if meeting is adjourned, state the facts], and having examined 
the road [or proposed road] in said petition described, and heard such 
reasons as were offered for and against the laying out of said road 
[or as the case may be] we were of the opinion that the laying out of 
said road [or as the case may be] was necessary and proper and that 
the public interest would be promoted thereby. We, therefore, 

caused a survey and plat of said road to be made on the day of 

, A. D. 18 — , by A. B., a competent surveyor, which plat and sur- 
vey were to us duly reported, and are hereunto appended and made 
a part of this order ; and having ascertained the aggregate amount 
of damages to which the owners of the land over which said road 
was to pass were entitled, and said damages having been definitely 
fixed by [here state the method by which the damages were ascertained. If 
the appeal was taken from the verdict of a jury and decided before mak- 



1)1 V. VI.] DAMAGES — MODE OF ASCERTAINING. 305 

?i:c. 90. In cases -where the damages claimed by the land - Damages, 
owners for the right of way is released, or is agreed upon commissioners 
between the land -owners and the commissioners, the commis- ma y examine 

n . -,. -, route ana 

sioners may, at their first meeting, or at an adjourned meet- make order, 
ing, examine the route of the road, and cause a survey thereof 

inn this order, here state the facts'], we appointed the day of , 

A. D. 18 — , (being within thirty days after the total amount of dam- 
ages wafl ascertained) at [state the place of meeting], as the time 

and place to meet and finally determine upon the laying out of 
said road [or as the case may be], of which meeting we gave public 
notice by causing three notices to be posted in public places in 
said town not less than five days prior thereto ; and having met 
at the time and place appointed, and the ^ aggregate amount of 
damages on account of the laying out of said road [or as the case 
may be], to wit: the sum of dollars and cents, appear- 
ing to be not more than reasonable conpensation, and to have 
been fairly and legally assessed, and the payment thereof not 
an unreasonable burden upon the taxpayers of the town, and 
having made such changes in the route of said road between the 
termini thereof, upon the survey and plat as reported by the 
surveyor, as in our judgment the convenience and interest of 
the public required, as will fully appear from the description and 
plat hereinafter contained, it w T as finally determined that the said 
road be laid out [or as the case may be]. It is, therefore, hereby 
ordered and determined that the said road be and is hereby laid out 
[or as the case may be], as follows, to wit: beginning [here describe 
the road], as shown by the plat hereunto annexed, and as so laid out 

[or as the case may be] — — is declared a public higlway of feet 

wide, the line of said survey being the center of said road. 
In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , A. D. 18 — . 

J. K., ) Commissioners 

S. P., I of 

A. T. J Highways. 

Form of Order Laying Out, Altering or Widening Highway where damages 

are released or agreed upon. 
State of Illinois, 

County 

Town of- 



ois,l 



Whereas, on the day of , A. D. 18—, we, the commis- 
sioners of highways of said town, received a petition in writing, of 
[here state the names of the petitioners] praying for the laying out [or 
altering or widening] of a road as therein and hereinafter described, said 
petitioners being freeholders residing within three miles of the said 
road [or proposed road] ; and it appearing from legal evidence that a 
copy of said petition had been posted up in three of the most public 
places in said town, in the vicinity of the road to be laid out [or as the 

case may be] not less than ten days before the day of , A. 

D. 18—, we did, upon said day of , A. D. 18—, fix upon the 

day of ,A.D. 18— , as the time when and as the 

place where we, the said commissioners of highways, would meet to 
examine the route of said road, and to hear reasons for and against 
the laying out of the same [or as the case may be] and give ten days' 
notice of the time and place of such meeting by posting up notices 



►06 ROADS AND BRIDGES. [DIV. VI. 

to be made, and make their order establishing, altering, widen- 
ing or vacating the road, according to the prayer of the peti- 
tion, and return the same within the time and in the manner 
specified in this act. 

thereof in three of the most public places in said town, in the vicinity 
of said road, [or proposed road] and having met at the time and place 
appointed [if meeting is adjourned here state the facts,'] and having ex- 
amined the road [or proposed road] in said petition described, and 
heard such reasons as were offered for and against the laying out of 
said road [or as the case may be], we were of the opipion that the lay- 
ing out of said road [or as the case may be] was necessary and proper, 
and that the public interest would be promoted thereby. We, there- 
fore, caused a survey and plat of said road to be made on the 

day of , A. D. 18 — , by A. B., a competent surveyor, which plat 

and survey were to us duly reported, and are hereunto appended and 
made a part of this order; and having ascertained the aggregate 
amount of damages to which the owners of the land over which said 
road was to pass were entitled, and said damages having been 
definitely fixed by [here state the method by which the damages were 
ascertained,] and having made such changes in the route of said road 
between the termini thereof, upon the survey and plat as reported 
by the surveyor, as in our judgment the convenience and interest of 
the public required, as will fully appear from the description and 
plat hereinafter contained, it was finally determined that the said 
road be laid out [or as the case may be]. 

It is, therefore, hereby ordered and determined that the said road 
be and is hereby as follows, to wit : beginning [here describe the road] 
as shown by the plat hereunto annexed, and as so laid out [or as the 

case may be,] is declared a public highway of feet wide, the line 

of said survey being the center of said road. 
In witness whereof, we, the said commissioners of highways, have 

hereunto set our hands, this day of , A. D. 18 — . 

E. M., 1 Commissioners 
A. T., I of 

E. B.J Highways. 

If the meeting of the commissioners of highways is adjourned, that fact should be 
stated at the proper place in the above form, in the following words : 

"We did adjourn said meeting by public announcement, and by 
the posting of a notice at the time and place named for the first meet- 
ing, until the day of ,A. D. 18— , at o'clock,— M., (the 

same being within twenty days from the time of the first meeting), 
to the [state the place] and having met at the time and place appointed 
for such adjourned meeting." 

Form of Order of Commissioners Vacating Road. 
State op Illinois, ^ 

County, y 

Town of . J 

Whereas, on the day of , A.D. 18—, we, the commissioners 

of highways of said town, received a petition, in writing, of [here state 
tJie names of the petitioners] praying for the vacating of a road therein 
and hereinafter described, said petitioners being freeholders residing 
within three miles of said road; and it appearing from legal evidence 
that a copy of said petition had been posted up in three of the most 
public places in said town, in the vicinity of said road, not less than 



DIV. VI.] DAMAGES MODE OF ASCERTAINING. 307 

SBC. 91. Any person or persons interested in the establish- inducements 
meat, alteration, widening or vacation of any road in this SidS^SS' 

State, are hereby authorized to offer inducements to the com- 
missioners of highway, for the establishment, alteration, 
widening or vacation of any such road, by entering into con- 
tract with said commissioners, conditioned upon such estab- 
lishment, alteration, widening or vacation, to pay money or 
any other valuable thing to the town, for the benefit of the 

ten days before the day of , A. D. 18 — , we did, upon said 

"day of , A. D.18 — , fix upon the day of , A. 

I). 18 — , as the time when, and , as the place where we, the 

said commissioners of highways, would meet to examine the said road, 
and hear reasons for or against the vacating of the same, and give 
ten days' notice of the time and place of such meeting by posting up 
notices thereof in three of the most public places in said town, in the 
vicinity of the said road; and having met at the time and place ap- 
pointed, we personally examined the route of said road, to wit: [here 
describe the road,'] and having heard such reasons as were offered for and 
against the vacating of said road, and being of the opinion that such 
vacating was necessary and proper, and that the public interest would 
be promoted thereby, we decided that the prayer of said petitioners 
should be granted. 

It is, therefore, hereby ordered and determined, and we do hereby 
order and determine, that said road be vacated and discontinued. 
In witness whereof, we, the said commissioners, have hereunto set 

our hands, this day of A. D 18 — . 

S. H., ) Commissioners 

A. T., [ of 

E. B., J Highways. 

Jt in no valid objection to the form of an order establishing a highway that 
it contains lengthly recitals where the facts recited are material to the validity of the 
proceedings. An order without these recitals, or statement of facts produced in a 
collateral proceeding might well be rejected as insufficient in not showiug affirma- 
tively that the antecedent or jurisdictional steps had been complied with. The 
order should properly show that the commissioners acquired jurisdiction of the case 
by petition in due form of law, and that they subsequently pursued the requirements 
of the law, in laying out and establishing the road. It will then be received as 
prima facie evidence of the facts it contains. Wells et al. v. Hicks. 27 111. R., 343: O. 
and C. U. R . R. v. Pond. 22 Id., 399 : see Harrington v. People, 6 Barb. R. 607 : Cassidy 
v. Smith, 13 Minn. R. No particular jorm of words are necessary in the order, if the 
facts sufficiently appear. Tucker v. Rankin, 15 Barb. R., 471. Where the words used 
were " have and do lay out a highway," it was held to import that the road was laid 
out at the date of the order. Fowler v. Mott, 19 Wend. R., 204. 

The maxim that " that is certain which can be rendered certain," applies to the 
order of the commissioners of highways establishing a public road. When such an 
order failed to show with certainty the precise location of the road, but it was des- 
cribed with reasonable certainty in the petition, and particularly described in the 
plat of the survey, which was made part of the order. Held, that "the plat was a part 
of the order, which, as well as the petition, might be consulted in determining the 
location of the road. The order was therefore sustained. Clifford v. Town of Eagle r 
35 111. R., 444. The description of a road is sufficiently certain, where, from the 
whole proceedings thereon, there appears no difficulty in locating it. Todemier et at. 
v. Aspinwall et al.. 43 111. R., 401. 

Although a road cannot be located from a mere reference to the calls and distances 
given in the order establishing it : yet if the court can be satisfied, on calling survey- 
ors and receiving proof on the points of location, that the location of the road can be 
ascertained, the order will be deemed sufficient. Comm'rs of Highways v. The People, 
38 111. R., 3-18. 

It is necessary to the'validity of the proceedings in laying out a road, that there 
should be a report and survey. These, and a plat of the road, must accompany the 
order establishing the road. Town v. Toim of Blackberry, 29 111. R., 137. 

After all parties in interest have been fully heard, the commissioners may proceed 



308 



ROADS AND BRIDGES. 



[DIV. VI. 



road and bridge funds of the same ; or to perform any labor, 
or to construct any road, bridge or culvert on any road which 
said person or persons desire to have established, widened or 
altered. And such contract, in writing, made with said com- 
missioners, shall be deemed good and valid in law, and may 
be enforced by said commissioners or their successors in office, 
before any court having jurisdiction. 

Sec. 92. The record of the town clerk, or a certified copy 



Contract in 
writing. 



Record of 



mafa^JriT*' °f suca record and papers, relating to the establishment, loca- 
dence. tion, alteration, widening or vacation of any road, shall be 

prima facie evidence in all cases that all the necessary ante- 
cedent provisions had been complied with, and that the action 
of the commissioners of highways, or other persons and offi- 
cers in regard thereto, were regular in all respects 



PRIVATE ROADS. 

private roads, Sec. 93. Eoads for private and public use of the width of 
rods th thrce three rods or less, may be laid out from one dwelling or plan- 

and lav out tho road at an adjourned meeting without any new notice. Wesfpori v. 
Co. Qmrira. 9 Allen R. ( Mass.), 203. 

The acts of a majority of the commissioners, in establishing or vacating 
highways/will be legal and binding, but all should have notice of meetings to con- 
sider any subject. Where an order establishing a highway, or an instrument for 
other purposes, is signed by two of the three commissioners, it will be presumed that 
the third was present and took part in the proceedings. Louks v. Woods, 15 111. R., 
25G ; Euan? ex ret., etc., v. Jamcsctal., 4 Wis. R„ 408 ; see ante, sec. 1, par. 2d, p. 151. But 
one commissioner cannot lawfully sign the name of another and make the instru- 
ment valid, unless by his direction or assent. Trans ex rcL, etc., v. James el al., 4 Wis. 
R., 408. 

After the location of a highway has been determined by the commissioners, the 
survey is a mere ministerial act, and could probably beconducted without the presence 
of a majority of the commissioners. Marble v. Whitney. 28 N. Y. R. (1 Tiffany), 297. 

The survey and plat of a public road is evidence of its location, but is not conclu- 
sive; like field notes of the government surveys, parol evidence may be received to 
show that the road was actually located differently from the calls in the survey of 
the road. Hiner v. The People, 34 111. R., 297. 

The order with the petition should be deposited with the town clerk, who should 
note the time of filing the same. This must be done by the clerk within a reasonable 
time after the fact occurs. Eut his neglect to mark the correct time of filing will not 
he fatal. A substantial compliance with the requirements of the statute is all that is 
necessary. Tovm v. Town of THackberry, 29 111. R., 137 

Upon an application to lay out a road, it is not sufficient to lay out a part only: the 
application can be complied with only by laying out the whole road according to 
the prayer thereof. And where a road is regularly applied for and the commission- 
ers decide to lay out a part only, any person through whose land the road runs as 
laid, is entitled to take steps to test the validity of their action. People v. Town Board 
of Spnngicctls, 12 Mich. R., 434. And it is equally objectionable where the road is 
extended beyond the termination mentioned in the petition, as to that portion 
extended. State v. Mochj, 18 Iowa R.. 525. 

An order altering a highway is in law a discontinuance of that part, of the road not 
within the bounds cf the alteration, without any special order of discontinuance. 
Bowley v. Walker, .Allen R. (Mass.\ 21. 

If the public is to be charged with the abandonment of a road, the proof of the 
act must be accompanied by the further proof that another road has been adopted 
in its stead. A public road, established by public authority, continues as such until 
it shall be vacated by a like authority. Champlinv. Morgan, 20 111. R., 181; Town of 
Lcwistown v. Proctor, i'7 111. R., 414. 

Certiorari is a proper proceeding to test the validity of proceedings in laying 
out a highwav, whether bv commissioners or supervisors, on appeal. This writ 
brings uo for review the whole proceedings in laying out the road, and any defect in 
the original proceedings may be objected to. If the proceedings arc found irregular 
they will be quashed. Dwight v. City Council of Sprin afield, 4. Gray R. (Mass.,) 107 ; 
Staie v. Vancleavc, 1 Dutch R. (N. J.,) 233 ; Town of Windfield v. Juoffatt, 42 111. R., 48. 



IHV. VI.] PRIVATE ROADS. 809 

ration of an individual to any public road, or from one public 
road to another, or from a lot of land to another, or from a 
lot of land to the highway, on petition to the commissioners 
of highways, by any person directly interested. The com- 
missioners, on receiving such petition, shall have power to lay 
out the road as asked for therein, to which end they shall pro- 
ceed and examine into the merits of the case, and shall be 
governed in their proceedings by the rules and regulations 
prescribed in this act in relation to public roads. The jury jury shall ecn- 
shall consider the damages that may result to parties from^jj,,. 
said proposed road, and shall assess the damages to each indi-^e 8 - 
vidual owner of lands affected thereby. The amount of such 
damages shall be paid by the persons benefited thereby to the 
extent and in proportion that they are benefited, to be deter- 
mined and declared bv the -jury. The remainder of the^ n 

" i 11 i -J1.1 Damages by 

amount of damages over and above that to be paid by the par- whom paid, 
ties as aforesaid, shall be paid by the land as in other case. 
The amount of damages to be paid by individuals shall be 
paid to the persons entitled thereto before the road shall be 
opened for use. An appeal may be taken on the question of Appeal 
the propriety and necessity of such road as in other cases. (1) 

(1) On the subject of private roads, the new constitution of 1S70 provides 
as follows : 

Art. 3,JSec. 30. The General Assembly may provide for astablishing and opening 
roads and cartways, connected with a public road, for private and public use. 

The intention of this provision is to place all ways on the footing of public high' 
ways. It has been doubted whether the legislature could authorize the taking ; of 
private property for mere private ways, even though provided for by the constitu- 
tion, because private property could only be taken against the consent of the owner 
for public use. Concord Railroad v. Greely, 17 N. H. R., 47. 

In the absence of acquiring a private way by express grant, an uninterrupted use 
and enjoyment of a right of private way over the land of another for twenty years 
becomes an adverse enjoyment, sufficient to raise a presumption of a grant. Buf 
such use, to be conclusive evidence of a right must have been continuous, uninter- 
rupted and exclusive ; that is, under a claim of right, with the knowledge and 
acquiescence of the owner. The use of an easement for twenty years unexplained, 
will be presumed to be under a claim or assertion of right, and adverse, and not by 
the leave or favor of the owner; and such a use will not only give a title by pre- 
scription, but will authorize the presumption of a grant. When a right to a private 
way is acquired by prescription, or by user of twenty years, it can only be lost by a 
non-user of twenty years, or by a release. A void proceeding for laying out a pri- 
vate ioad, or a void grant, may form the basis of an adverse use and enjoyment of 
an easement in land. The consent of the owner of land to the laying out of a pri- 
vate road across his land, may be presumed from his acquiescense and the acquies- 
cense of those deriving title from him, in the uninterrupted use of the road as a 
private road, by others for twenty years. Such consent will render the proceedings 
for layingZout the road valid. Miller v. Garlock, 8 Barb. R.. 153. 

Open and adverse use for twenty years, although beginning in trespass, will estab- 
lish a right of way. Sibley v. EUis, 11 Gray R. (Mass.). 417. 

A right of way cannot arise from mere necessity independent of any right by pre- 
scription. Tracy v. Atherton, 35 Vt. R. (6 Shaw), 52. 

A gift of the right of way is not a gift of the earth and other materials within the 
boundary lines of the way given. Smith v. Rowe, 19 Ga. R., 89. 

Supposing the title of a person to a private road by prescription to be otherwise 
perfect, the fact that such road has become less important to him than formerlv will 
not put an end to his right to use it. C'rounsey. Wemple, 29 N. Y. Rep. (2 Tiffany), 
540. 

A right of way. devised in express terms, is appurtenant to the dominant estate, 
and passes by a conveyance of such estate without express mention of the appurte- 
nances. It is a charge upon the servient premises, and continues such when they 
are in the hands of any subsequent purchaser. Lide v. Hadley, 30 Ala. R., 027. 



310 ROADS AND BRIDGES. [DIV. VI. 

t%vo years' Sec. 94. If such private road or cartway shall not be 

imitation. opened by the petitioners or other assigns within two years 

from the time of making the order for the location of the 

same, such order shall be regarded as rescinded. 

Time to remove Sec. 95. When such private road or cartway is proposed 

to pass over inclosed lands, the owners of such lands shall 

have a reasonable time, not exceeding eight months, to be 

designated by the commissioners of highways, to harvest crops 

and remove fences which may be on such land before such 

road or cartway shall be opened. 

Pay for work Sec. 96. The commissioners of highways may, in their 

roadE vate discretion, pay persons who live on or have private roads 

which are used by the public, for work done on such roads ; 

but in no case shall they be allowed more than the amount of 

their road tax for the year in which the work is done. 

ROADS ON COUNTY AND TOWN LINES. 

r.cads on town Sec. 97. Public roads may be established, altered, widened 
iiries? OUn or vacated on township or county lines, in the same manner as 
other public roads, except that in such case a copy of the 
petition shall be posted up in and presented to the commis- 
sioners of highways of each town interested; whereupon it 
shall be the duty of the commissioners of highways of the 
several towns to meet, and act as one body, in the same time 

W r here a party obtains a right to a private road of the width 'of two rods, the 
owner of the land through which it passes must so build his fences as to leave full 
two rods in width in every part of the road ; he cannot build a Virginia fence : plac- 
ing the centre on the exterior lines of the two rods, with the angles projecting into 
the road. A party will be deemed, however, to have assented to such location of 
the fences, if apprised that the damages of the owner of the lands were assessed in 
reference to such location, or if he permits the fences to be thus built without objec- 
tion. Eerrick v. Stover, 5 Wend. R , 589. Held, also, Ibid., that where a party obtains 
a right to a private road, he will be entitled to an action against the owner of the 
land, if he places his fence ten or twelve feet on the land acquired for the road, 
unless he has yielded his assent expressly or Implicitly to such a location. But it 
seems that if the plaintiff had assented to the location as made, or if he had seen the 
defendant constructing his fence as it is, and knowing that the angles encroached 
upon the road and was silent, he would not be permitted to maintain an action for 
damages. 

An obstruction of a private road is a mere private injury, in which the public 
have no concern. Fowler v. Lansing, 5 Wend. R., 580. 

An obstacle placed in a private road by the owner of the land over which it is laid 
out, cannot lawfully be removed by one having no right to use the road. Drake v. 
Bogers, 3 Hill R., 604. 

V'here it appeared that a road was from two and a half to three rods wide, that it 
terminated at A's house without connecting with any other road, that it had never 
been used by the public, and the record on file with the town clerk described it as a 
"highway fo'r A., beginning," etc., held, though it also appeared that for many years 
it had been included in a road district, the evidence did not authorize the court to 
pronounce it a public highway as a matter of law, but the question should at least 
have been submitted to the jury. It would seem that this evidence showed the road 
to be a mere private one, intended for the accommodation of A. Drake v. Bogers, 3 
Hill R., 604. . 

If a private way is opened, leading from a* public street, and prepared for use in 
the same manner as a public street and with nothing to show that it is not such, the 
public may lawfully travel over it, although it is closed at one end. Dantorth v. 
Durell, 8 Allen R. (Mass.), 242. 



DIV. VI.] ROADS ON COUNTY AND TOWN LINES. 311 

and manner as in other cases, in considering the petition, 
viewing the premises, adjusting damages and making all orders 
in reference to such proposed road, alteration, widening or 
vacation, and a majority of all such commissioners must con- 
cur in all such orders ; and a copy of all final orders and plats 
and papers shall be filed and recorded in each of the counties 
and towns interested.(l) 

Sec. 98. The commissioners of highways shall also, in case Allotment— 
a new road is established, allot to each of such towns the part 
of such road which such town shall open and keep in repair, 
and the part so allotted shall be considered as wholly belong- 
ing to such town. They shall also divide the expenses and 
damages which may accrue from such location, widening or 
alteration, and if they cannot agree, they shall refer the 

(1) Form of Order of Commissioners of adjoining Towns in establishing, 

altering, widening or vacating a road on county or town lines. 
State of Illinois, \ 

County of , J ss * 

At a meeting of the commissioners of Highways of the towns of 

and , in said county, held in said town of , on the 

day of , A. D. 18—, for the purpose of laying out a road 

upon a line between said towns, the same being duly petitioned 
for ; it is ordered and determined by the said commissioners that a 
road be and the same is hereby laid out upon the line of said towns 
[or as the case may be], according to the survey and plat thereof here- 
unto" annexed, which the said commissioners have caused to be 
made, as follows, to wit : [insert the survey as in other cases'] and that 
said line above described, be the center of said road, and the same 

is hereby declared to be a public highway, feet in width. Arid 

it is further ordered that such highway be divided into two [or more, 
as the case may be] road districts, as follows, to wit : that part thereof 

from to , shall be one of said districts, and shall be allotted 

to the town of ; the residue of said highway shall be the other 

road district, and shall be allotted to the town of . 

In witness whereof, the said commissioners have hereunto sub- 
scribed their names this day of , A. D. 18—. 

A B ^ 

n ' p/' f Commissioners of Highways 

E p'j of Town of . 

C* TI "I 

j' T "' I Commissioners of High wavs. 
qjJ''J of Town of 

The law does not direct as to manner of petitioning for a town line road except as 
to whom the petition shall be presented. It will therefore be proper to observe the 
same form as in other cases of highways. Probably there should be twelve peti- 
tioners from each town. Notice should be given as in other cases; but copies of the 
petition and notices should be posted in each town. 

The location of a highway by road commissioners, near to a town line, but wholly 
within the town, and not on the line, nor partly within both towns, is authorized to 
be done by the commissioners of the town in which the road is located. That in 
such case it does not require the joint action of the highway commissioners of both 
towns; otherwise, when it is locited on the town line, partly in each, as then it 
becomes a road common to both bodies, and under the joint control of the two, and 
it must be located and maintained under the provisions of the 98th section of the 
above act See Mack v. Commissioners of Highways, 41 111. R., 378. 



312 ROADS AND BRIDGES. [DIV. VI. 

Decision of matter to three disinterested freeholders, as arbitrators, whose 
arbitrator's decision shall be final.(l) 

APPEALS. 

Appeal from Sec. 99. Any person or persons interested in the decision 
decision of f the commissioners of highways, in determining to or in 

commissioners „ . , . P, " ' & , 

or verdict of reiusmg to lay out, alter, widen or vacate any road, or revok- 

jur3 ' ingany previous order or decision relative to any road, or from 

the verdict of any jury in assessing damages in opening, 

altering or vacating any road, may appeal from such decision 

to three supervisors of the county, outside of the town in 

appeal perfect- which such road or proposed road is located, by giving a written 

notice of such appeal to the said commissioners of highways, 

and to at least three of the petitioners, and also to the same 

parties, a notice when and where such appeal will be tried, at 

least three days before such trial, within ten days after such 

by ^nree^uper- decision has been filed in the office of the proper clerk; and 

visors. shall also present a written petition to some justice of the 

peace of the county, asking for an appeal, and stating on 

what grounds such appeal is taken. (2) 

(1) Where a road is located on the dividing line between townships, the com- 
missioners of the towns must create road districts, and allot the expenses of keeping 
up the road among the districts as nearly equal as possible, giving each town an 
equal number of districts, each road to be attached to the town in which it lies, and 
a record of the partition and allotment to be made in the office of the town clerks 
of each of the respective towns. Without such allotment, the road cannot be 
opened, neither of the towns having power to act. Keechx. The People, 22 111. R., 
478; Nies v. Franzen, 18 Wis. R., 537. The road, in such case, should be opened by 
the commissioners of the town to which road districts are allotted: such allotment 
gives to the commissioners jurisdiction over so much of the road as is contained in 
the road districts allotted to their town. 

(2) Form of Petition for Appeal from Decision of Commissioners. 
State of Illinois 

County, 

To H. B., a Justice of the Peace in and for said county : 

The undersigned, A. B., C. D. and E. F., persons interested in the 

decision of the commissioners of highways of the town of in said 

county, "in determining [or refusing] to lay out a road [or as the case 
may be~] as follows [describe the road] do hereby appeal to and submit 
the matter in controversy to the decision of three supervisors of the 

county of aforesaid, to be selected by you agreeably to the statute 

in such cases made and provided, the order of said commissioners 
embodying said decision, was filed in the town clerk's office of said 

town on the day of , A. D. IS—, a copy of which is hereunto 

annexed, in and by which the road in question and the proceedings 
and determination of said commissioners will more fully appear. 
The grounds upon which this appeal is taken are [here briefly state the 
grounds'] and said appeal is brought in relation to the laying out of 
said road [or as the case may be] and to reverse entirely the decision 
of said commissioners, [or as the case ygay be]. The undersigned 
being owners of land [or as the case may be] over which said highway 
is laid out [or as the case may be] therefore asks that you as such jus- 



DIV. VI.] APPEALS. 313 

Sec. 100. It shall be the duty of the justice of the peace rower of 
to cause to be summoned three supervisors of the county to |ppeah SOrS ° n 
hear such appeal ; and said supervisors shall fix upon a time 
and place when said appeal shall be heard by them ; and upon 
such appeal the said supervisors shall have the same power and 

tice of the peace, will proceed, according to law, and select three 
supervisors to hear and determine said appeal. 
Dated this day of , A.D. 18—. 

A. B. 

C. D. 

E. F. 

It will be well to annex a copy of all papers in the case occurring anterior to the 
order of the commissioners of highways, as well as a copy of the order, and have 
the town clerk certify the whole to be correct copies of the original on tile in his 
office. The appeal may be by various persons at different times, but they should be 
heard at the same time". Corley ct al v. Kennedy, 28 111. It., 143. 

It has been held in New York, Bushvrick v. Messerole, 10 Wend. R.. 122, that" an 
appeal, stating the proceeding of commissioners in laying out a road to be illegal, is 
a sufficient compliance with the law, requiring the grounds of the appeal to be 
briefly stated, in the case where exceptions were taken to the sufficiency of the peti- 
tion, on the ground of the qualification of the petitioners within the meaning of the 
law, yet it was thought it would have been well to have specified the objection. 

An'appeal suspends the powers of the commissioners ; and until their acts are 
affirmed by a decision thev cannot open the road. If they do so, they are trespass- 
ers. Clark v. Phelps, 4 Cowen, R., 190. 

If on an order being made discontinuing a highway, a fence be built across it. an 
appeal subsequently brought will not have the effect of rendering the fence a pub- 
lic nuisance. Drake v. Rogers. 3 Hill R., 604. 

After the appeal the supervisors will become actors, and if they do not proceed, 
it cannot be imputed as a lach to the party. Clark v. Phelps, 4 Cowen R., 100. 

Form of Notice of Appeal to be given to Commissioners of Highways and 

Petitioners. 

To J. B., D. T., T. J., commissioners of highways of the town of , 

in the county of : 

Sirs: — Please take notice that I have appealed from the decision 

of the commissioners of highways of the said town of , made 

on the day of , laying out a highway [or as the case may be], 

as follows, to wit : [here insert a description of the road'] and that A. 

B., supervisor of the town of , C. I)., supervisor of the town of 

, and E. F., supervisor of the town of , of said county, to 

whom said appeal is made, will meet at the house of , on the 

day of , at — o'clock — M., for the purpose of hearing and deter- 
mining said appeal ; which appeal is taken for the purpose of wholly 
reversing the decision of said commissioners in laying out the said 
road [or as the case may be] at which time and place you may appear 
and show cause, if any you have, why said decision should not be 
whollv reversed. Yours, etc., E. M. 

Dated this day of , A. D. 18— 

This notice should be served by delivering a copy to each of the commissioners, 
or by leaving at their dwelling, in the notice of the three petitioners, the address 
can be thus : 

" To [name the petitioners] three of the petitioners who petitioned 
for the road herein described." 

The notice should be served upon the three petitioners in like manner as upon 
the commissioners of highways, so that each may have a copy. A true copy should 
be retained by the person or persons, taking the appeal; and the person serving 
such notice should make affidavit of the fact, to be endorsed upon the back of the 
copy of the notice retained, which affidavit may be in the following lorm. The 
supervisors to whom an appeal is taken, cannot act unless the commissioners and 



•°>14 ROADS AND BRIDGES. [DIV. VI. 

May call jury, authority that is by this act conferred on the commissioners of 
highways, not only in regard to the laying out, altering, widen- 
ing or vacating any road, but shall have the same power to 
cause a jury to be called to assess damages, whenever the state 
of the proceedings require it, and the supervisors cannot agree 
with the owners of the land in regard to the same. 

Their report. Sec. 101. And they shall make a report of their proceed- 
ings and decision in the case, and in like manner that is by 
this act required by the highway commissioners, and shall be 

Decision final, entitled to the same compensation ; and their decision shall be 
final in regard to laying out, altering, widening or vacating 

three of the petitioners are notified, and should they do so, their action is invalid. 
The appeal, however, will not be dissmlssed on failure to give the notice ; it will 
stand until acted on by the s upervisors.__ McPherson et al v. Holdridge, 24 111. R., 38. 

Form of Affidavit of Service of Notice of Appeal upon Commissioners of 

Highways. 
State of Illinois, \ oo 

County, / ss * 

E. 3VL, being duly sworn, doth depose and say : That he did, on 

the day of , A. D. 18 — , make service of a notice in writing, 

of which the within is a true copy, upon A., B., and C, commission- 
ers of highways of the town of , in said county, by delivering 

one to each of said commissioners, [or by leaving at their dwelling 
houses, as the case may be.] E. M. 

Subscribed and sworn to before me, \ 

this day of , A. D. 18— . / 

S. V., Justice of the Peace. 

Form of Affidavit of Service of Notice of Appeal upon three of the Peti- 
tioners. 
State of Illinois, \ 

County, / ss * 

E. P., being duly sworn, doth depose and say : That he did, on the 

day of , A. D. 18—, make service of a notice in writkig of 

which the within is a true copy, upon E. B., AV~. C, and G. S., being 
three of the petitioners who petitioned for said road, by delivering 
one to each of said persons, [or by leaving at their dwelling houses, 
as the case may be.] E. P. 

Subscribed and sworn to before me, \ 

this day of , A. D. 1 S— . / 

S. V., Justice of the Peace. 

' The law does not provide for notice of an appeal to the owners of land affected. 
This k a defect in which the courts can afford no relief. It is the duty of such own- 
ers to take notice of the appeal from the proceedings pending, without special 
notice, and follow it up. Wells et al v. Hicks, 27 111. R., 343, 

The attendance of a majority of the commissioners of highways, it seems, would 
be a waiver of notice as to the commissioners, but the attendance of one only will 
not have the effect. 20 Wend. R., 186. 

Where commissioners of highways have acted upon a petition and treated it as 
valid, they cannot afterwards in any proceeding in which they may be concerned, 
deny its sufficiency. See Carmelv. Judges of Putnam, 7 Wend. K., 264. 

When the supervisors dismiss an appeal and adjourn without any intention of 
further action, thev cannot resume the subiect, unless notice of the time and p ace 
of a future meeting is served on the commissioners of highways and on the three 
petitioners before served, and without these, the action of the supervisors is void. 
Keech v. The People, 22 111. R., 478. 



DIV. VI.] APPEALS. 



such road, or in refusing to do the same, for one year after 
such decision. (1) 

(1) Form of Order of Supervisors on Road Appeal — Appeal from Decision 

in Fa i or of Road. 
State of Illinois, \ 

County, j ss - 

Whereas, on the day of , A. D. 18 — , H. II., presented 

to L. M., Esq., a justice of the peace of the county of , a j^etition 

asking for an appeal from the order and determination of the com- 
missioners of highways of the town of , in said county, in laying 

out a highway [or, as the case may be], as contained in the order of 
said commissioners, deposited with the town clerk, and riled in his 

office, on the day of , A. D. 18 — , and the said justice of the 

peace having summoned us, the undersigned, three supervisors of 
said county, for the hearing of said appeal, and we having met on the 

day of , A.D. 18 — , at 'O'clock, — M.,at [state place] to hear 

the proofs and allegation of the parties, being the time and place 
fixed upon by us, when and where we would meet to consider such 
appeal ; and it appearing that said commissioners of highways and 
three of the petitioners in said case had been duly notified of the 
time and place of such hearing as required by law, did proceed to 
hear the proofs and allegations of the parties, and to consider said 
appeal ; and we, being fully advised in the premises, do adjudge, 
order and determine that the order and determination of said com- 
missioners of highways be and the same is in all things affirmed [or 
as the case may be]. 

In witness whereof, we have hereunto set our hands, this day 

of , A. D. 18—. 

J. S., Supervisor of the town of . 

R. P., Supervisor of the town of . 

H. J., Supervisor of the town of . 

Fees of supervisors, days each, $ . 

Form of Order of Supervisors on Road Appeal — Appeal from Decision 

Refusing Road. 
State of Illinois, ) 

County, J ( ' 

\Vhereas, on the day of , A. D. 18—, J. R, presented to E. 

B., Esq., a justice of the peace of the county of a petition, asking 

for an appeal from the determination of the commissioners of high- 
Ways of said town of in refusing to lay out a highway [or as the 

case may be,] which refusal appears endorsed on the petition for said 
road, returned and filed in the office of the county clerk of said 

county, on the day of , A. D. 18—, and the said justice of the 

peace having summoned, us, the undersigned, three supervisors of 
said county, for the hearing of said appeal, and we, having met on 

the day of A. D. IS—, at o'clock, — M., at to hear 

the proofs and allegation of the parties, being the time and place 
fixed upon by us, when and where we would meet to consider such 
appeal; and it appearing that said commissioners of highways and 
three of the petitioners in said case had been duly notified "of the 
time and place of such hearing, as required by law, did proceed to 
Consider said appeal ; and having heard the proofs and allegations of 
the parties, and such reasons as were offered for and against the lay- 
ing out of said road [or as the case may be,] we were of the opinion 
that the laying out of said road [or as the case may be,] was necessary 
and proper, and that the public interest will be promoted thereby, 



316 ROADS AND BRIDGES. [DIV. VI. 

Appellant file Sec. 102. Any parties taking an appeal from the award of 
fus?iceo?town tne decision of the highway commissioners, or the verdict of 
clerk. the jury, shall pay the cost of such appeal, in case the award 

and that the decision of the said commissioners should therefore be 
reversed. 

We, therefore, caused a survey and plat of said road to be made on 

the day of , A.D. 18 — , by H. H., a competent surveyor, which 

plat and survey were to us duly reported, and are hereunto appended 
and made a part of this order ; and having ascertained the aggregate 
amount of damages to which the owners of the land over which said 
road was to pass were entitled, and said damages having been defi- 
nitely fixed by [here state the method of ascertaining the damages. If the 
appeal is from the verdict of a jury, and is decided before making this order, 

state tJiat fact], we appointed the day of , A. D. 18 — , (being 

within thirty days after the total amount of damages was ascer- 
tained) at [state the place of meeting], as the time and place to 

meet and finally determine upon the laying out of said road [or as 
the case may be], of which meeting we gave public notice by causing 
three notices to be posted in public places in said town not less 
than five days prior thereto ; and having met at the time and place 
appointed, and the aggregate amount of damages on account of 
the laying out of said road [or as the case may be], to wit: the sum 

of dollars and cents, appearing to be not more than 

reasonable compensation, and to have been fairly and legally as- 
sessed,and the payment thereof not an unreasonable burden upon 
the taxpayers of the town, and having made such changes in the 
in the route of said road between the termini thereof, upon the survey 
and plat as reported by the surveyor, as in our judgment the con- 
venience and interest of the public required, as willfully appear from 
the description and plat hereinafter contained, it was finally deter- 
mined that the said road be laid out [or as the case may be be]. 

It is, therefore, hereby ordered and determined that the said road 
be and is hereby laid out [or as the case may be] as follows, to wit : 
beginning [here describe road], as shown by the plat hereunto annex- 
ed, and as so laid, out [or as the case may be] is declared a public h igh- 

way of feet w T ide, the line of said survey being the center of said 

road. 

In witness whereof, we, the said supervisors, have hereunto set 

our hands, this day of , A. D. 18 — . 

T. A., Supervisor of the town of . 

C. S., Supervisor of the town of . 

D. K., Supervisor of the town of . 

Note.— Where one of the supervisors becomes unable to attend, before the deter- 
mination of the appeal, whereby another is associated in his stead, some statement 
of the fact should appsar in the order of proceedings of the supervisors, otherwise 
there would be a variance in the record, and the person associated would seem to 
be a stranger in the t r ansaction. In such cases the order may be varied as follows : 

"And said justice of the peace having selected A. B., C. D., and 
I. J., three supervisors of said county, for the hearing of said appeal, 
and said I. J. being unable to attend before the determination 
thereof, and the undersigned E. F., a supervisor of said county being 
duly associated in place of said I. J., and we the undersigned 

supervisors having met on the day of, etc. [concluding according 

to the form of order]." 

The form for assessment of damages by commissioners of highways in laying out 



DIV. VI.] APPEALS. 317 

or the decision of the highway commissioners, or the verdict 
of a jury is in all things sustained; and shall file a sufficient 

a road, can be varied to suit the occasion of assessment of damages by supervisors 
on appeal. 

The order of the supervisors altering or establishing a road should always be 
drawn with a great degree of eare, and should properly show, by recital or by doc- 
uments and papers annexed and referred to, a history of the whole proceedings, so 
as to make a perfect record; the foregoing form is recommended as being the most 
convenient method of the two. It has been held in New York. JIarringtonv. People. 
6 Barb. R.. 607, that to give commissioners of highways jurisdiction of proceedings 
to lav out a highway, an application must be made to them in writing, duly signed 
as required by law; and that an order directing the laying out of a highway, made 
on appeal from the decision of such commissioners, must .^how the making of such 
application to the commissioners, otherwise the order will not be conclusive evi- 
dence of the regularity of the proceedings for laying out the road. 

The regularity of proceedings before the commissioners of highways, such as 
sufficiency of notice, cannot be questioned for the first time, and reviewed before 
the supervisors on appeal. Smith v. Alexander, 34 Ind. R., 454; Wells et al. v. Hicks, 27 
111. R., 343. The only questions for the supervisors to decide on an appeal, are, as to 
the expediency or inexpediency of the road, and the amount of damages which the 
appellant will sustain by its location over his land. The question of the jurisdiction 
of the commissioners could not arise on such a proceeding. Commis.no ners v. Harper, 
38 111. R., 104. It is no part of the duty of the supervisors to hear dilatory and tech- 
nical objections. Beadles v. Smith, 15 III. R., 326. 

The supervisors have, no doubt, authority to determine whether the appeal is 
properly before them, by being regularly taken ; as that a sufficient bond has been. 
filed, and the appeal taken by persons dulj qualified. . Town of M infield v. Moffatt et al., 
42111. R., 48, But it seems they have no authority to entertain an objection to the 
regularity of the proceedings auterior to the decision of the commissioners; as their 
decision "can only be on the merits as to the necessity and propriety of laying out the 
road, and if any irregularity has intervened previous to the decision of the commis- 
sioners, it can only be corrected by certiorari directed to the commissioners. War- 
wick v. Judges of Oswego Co., 13 Wend. R., 433. All objections of a dilatory nature 
should be made before the commissioners of highways, and should they err in their 
proceedings, the remedy by certiorari, and not an appeal, is the proper course, and 
which it seems will be awarded in such cases. See People v. Wilkinson, 13 111. K., 
600. 

Upon an appeal to supervisors from the decision of the commissioners of high- 
ways, as to the laying out of a road, it is not necessary that the supervisors should 
examine the entire road. It will be sufficient if they examine that portion of the 
road against which the objections are urged. Commissioners, etc., of Sonora v. Super- 
visors or Carthage, etc., et al., 27 111. R., 411. 

On an appeal from the doings of the commissioners in laying out a road, an 
inquiry into the damages of the owners of lands, it seems, will be proper to enable 
the supervisor to determine whether the benefit will equal the expense, and whether 
the public good will be promoted by the road. Bushwick v. Mtsserole, 10 Wend. R., 

It seems that supervisors on hearing appeals from commissioners of highways, 
decide the appeal, not on the facts existing at the time of the original application'to 
the commissioners, but on the fact existing at the time of the hearing before them. 
In this lepect, the hearing before them is in the nature of a new proceeding. See 
People v. Goodwin, 4 Seld. R., 573. 

After the supervisors have determined a case submitted on appeal, it becomes an 
act done, and their power over the subject is exhausted. They cannot resume it 
and change the result. People v. Ferris, 41 Barb. R., 121. 

But it seems that where supervisors have committed errors in their order, reversing 
the order of the commissioners and determining to lay out a road they have a right, 
after filing their order, to deposit in the town clerk's office a document correcting 
the errors; which will be deemed a valid amendment. The reversal of the com- 
missioners' order and determination to lay out the road, were quasi judicial acts, 
and could not be reversed or altered by the supervisors; but making up the record 
of their proceedings was ministerial, and should they refuse to make such correc- 
tion, it seems a mandamus wiU be avoided, requiring them to do so. Hallock y. 
Woolsey, 23 Wend. R., 328. 

Where the commissioners of highways refuse to open a road laid out by the super- 
visors, on appeal, a mandamus lies to compel them to do so; which writ need not 
in the first instance be directed to the commissioners by their individual names. It 
is only in case of disobedience to the writ that they are to be proceeded against per- 
sonally. People v. Champion. 16 Johns. R.. 61. 

It has been held in New YorK, 7 Wend. R., 264. that a general appeal from the 
determination of commissioners refusing to lay out a road, is a sufficient compliance 
with the requirements of the statute. 

If the commissioners ot highways entertain an application for relaying, vacating 
or altering of a road within one year after the determination of the supervisors on 
appeal, their proceedings will be void. People v. Township Board, 13 Mich. R., 462. 



318 ROADS AXD BRIDGES. [DIV. VI. 

bond with the justice of the peace or town clerk, before taking 
such appeal, guaranteeing such payment in such case.(l) 

(1) For.m of Appeal Bond when Appeal is from Decision of Commissioners. 

Know all men by these presents, that we, H. H., and A. T., of the 

town of , in the county of , and State of Illinois, are held and 

firmly bound unto E. B., supervisor of the town of in said county, 

and to his successors in office, in the penal sum of dollars, for 

the payment of which, well and truly to be made, we bind ourselves, 
our heirs, executors and administrators, jointly, severally and firmly 
by these presents. 

Signed with our hands and sealed with our seals, this day of 

, A. D. 18.—. 

The condition of the above obligation is such, that whereas, the 
above bonden, H. H., has appealed from the decision of the commis- 
sioners of highway of the said town of in laying out a highway [or 

as the case may be] from [here describe the road~], "by their order bearing 
date the day of , A. D. 18—. 

Now, therefore, if the above bounden, H. H., shall promptly pay, 
or cause to be paid, all costs arising from said appeal, in case the 
determination of the commissioners of highways in the premises 
shall be in all things sustamed, then the above obligation to be void, 
otherwise to remain in full force and virtue. 

II. H., [seal.] 
A. T., [seal.] 

Approved by me, this day of , A. D. 18 — . 

L. M., 

Justice of the Peace. 

Form oj Appeal Bond xchcn Appeal is by Person interested in Verdict of 
assessing Road Damages. 

Know all men by these presents, that we, S. P., and A. H., of the 

town of , in the county of , and State of Illinois, are held and 

firmly bound unto J. S-, supervisors of the town of in said county, 

and to his successors in office, in the penal sum of dollars, for 

the payment of which well and truly to be_ made, we bind ourselves, 
our heirs, executors and administrators, jointly, severally and firmly 
by these presents. 

"Signed with our hands and sealed with our seals, this day of 

A, D. 18— . 

The condition of the above obligation is such, that whereas, the 
above bounden S. P., a person interested in the verdict of the jury 
who assessed damages in the matter of the laying out of a road 
[or as the case may be] from [here describe the road] has appealed from 
the decision of the commissioners of highways in said matter. 

Now, therefore, if the above bounden S. P., shall promptly pay, or 
cause to be paid, all costs arising from said appeal, in case the said 
verdict of the jury in the premises shall be in all tilings sustained, 
then the above obligation to be void, otherwise to remain in full force 
and virtue. 

Approved by me this day of- 



If the bond on appeal is deemed insufficient, in not reciting the ease in 
question correctly or in the manner of its execution, the objection should be made 







s. 


P-, 


[seal.] 






A 


H. 


[seal.] 


A.D 


.18—. 








L. 


M., 










Justice of the Peace. 



DIV. VI.] BRIDGES. 319 

Sbc. 103. The decision of a majority of the supervisors in Decision of 
any appeal case shall be taken as the decision of said supervisors. ^p^JorJ. 

SEC. 104. When the commissioners of highways of one Appeal where 
town disagree with the commissioners of highways of an commissioners 

,...° . , ii' n i disagree as to 

adjoining town in regard to the laying out ot a new road, or road on town or 
the alteration, widening or vacation of an old road, or any couuty ine - 
county or town line, appeals may be taken from such decision 
in the same manner as set forth in section 99 of this act : Pro- Proviso. 
rided, that when such decision is in regard to a road on a county 
line, two supervisors and one commissioner of highways shall be 
selected from one county, and two commissioners of highways 
and one supervisor shall be selected from the other, the county 
from which the two supervisors shall be selected, shall be deter- 
mined by the party or parties taking the appeal, and the justice 
of the peace shall issue his summons accordingly. 

Sec. 105. All roads heretofore laid out upon town or Public roads 
county lines, shall be divided, allotted and kept in repair in comSyor^owm 
the manner as hereinbefore directed. Any public road that lines, 
is or shall hereafter be laid out on a county or town line, shall 
be held to be a road or a county or town line, although, ow T ing 
to the topography of the ground along said county or town 
line, or at the crossing of any stream of water, the proper 
authorities, in establishing or locating such road, may have 
located a portion of the same to one side of such county or 
town -line. 

Sec. 106. Roads may be laid out and opened upon the line Roads on state 
between this] and any adjoining State, as provided in the pre- line< 
ceding sections, whenever the laws of such adjoining State 
shall be applicable. 

BRIDGES.(l) 

Sec. 107. Bridges over streams which divide towns or coun- Bridges be- 
ties, and bridges over streams on roads on county or town or towns, 
lines, shall be built and repaired at the equal expense of such 
towns or counties : Provided, that for the building and main- 
taining of bridges over streams near county or town lines, in 
which both are equally interested, the expense of building and 

before the supervisors. If adjudged insufficient, it is but reasonable that the party 
should be permitted to cure the defect by filing a new bond. Where two names are 
affixed to a bond being the same persons who take the appeal, and no other names 
appear as sureties, for he purposes of the case, one may be regarded as surety for 
the other. Even if this' were not so, the objection comes too late on certiorari. Town 
of Winfield v. Moffait, 42 111. R., 47. 

(1) See act to provide for the erection and maintenance of bridges by two or more 
towns, pout, p. 330. 



320 ROADS AXD BRIDGES. [DIV. VI. 

maintaining any such bridges shall be borne equally by both 
counties or towns. 
Joint contracts, Sec. 108. For the purpose of building or keeping in repair 
enforced. 6 an such bridge or bridges, it shall be lawful for the commission- 
ers of highways of such adjoining towns or counties, to enter 
into joint contracts, and such contracts may be enforced, in 
law or equity, against such commissioners jointly, the same as 
if entered into by individuals, and such commissioners may be 
proceeded against, jointly, by any parties interested in such 
bridge or bridges, for any neglect of duty in reference to such 
bridge or bridges, or for any damages growing out of such 
neglect. (1) 
Contribution, Sec. 109. If the commissioners of highways of either of 
owcompeiie • suc j 1 tow T ns, after reasonable notice in writing from the com- 

(1) Form of Contract between Commissioners of Highways of Adjoining 
Towns, for Building Bridge. 

This contract, made and entered into thid day of , A. D. 

18 — , by and between A. B., C. D., and E. F., commissioners of high- 
ways of the town of , in the county of , and State of Illi- 
nois, of the one part, and G.H., I. J. and K. L., commissioners of high- 
ways of the town of , in said county, being adjoining towns, 

witnesseth, that said towns having become liable to make a bridge 

across river, a stream dividing such towns, said commissioners, 

in consideration of the premises and of the agreement hereinafter 
set forth, to be kept and performed by the respective parties, do con- 
tract and agree, that said bridge shall be built over said river where 

the road leading from — — to , crosses the same, on the line of 

the centre of said road ; that said bridge shall be of the following 
plan and materials, to wit: [Set forth briefly the plan and materials, 
where such is made part of the contract.] That the building of said 

bridge shall be let by contract within months from the date 

hereof, to the lowest bidder, who shall be required to complete the 

same within months from the date of accepting his bid. That 

the letting of said contract, the prosecution of the work, and accept- 
ance thereof, shall be under the joint supervision and direction of 
said parties hereto, and their successors in office, and that the com- 
missioners of each town will promptly furnish and pay over the due 
proportion of money that their said town may be liable for in build- 
ing said bridge, as the payments shall become due upon the contract 
for building thereof. 

In witness whereof, the said parties have hereunto set their hands 
and seals, the day and year first above written. 

In presence of "I A. B., [seal.] 

/ C. D., [seal.] 

E. F., [seal.] 
Commissioners of Highways of the Town of — 



G. H., 
I. J., 
K. L., 



SEAL. 
SEAL. 
SEAL. 



Commissioners of Highways of the Town of . 

Xotr— The foregoing form can be varied or enlarged to suit the circumstances of 
particular cases. 



DIV. VI.] BRIDGES. 321 



missioners of highways of any other such towns, shall neglect 
or refuse to build or repair any such bridge, when any con- 
tract or agreement has been made in regard to the same, it 
shall be lawful for the commissioners so giving notice to build 
or repair the same, and to recover, by suit, one -half (or such 
amount as shall have been agreed upon) of the expense of so 
building or repairing such bridge, with costs of suit and inter- 
est from the time of the completion thereof from the commis- 
sioners so neglecting or refusing. (1) 

Sec. 110. Any judgment so recovered against the commis- Judgments 
sioners of highways of either of such towns, shall be a charge ch u ar ge on town 
on such town, unless the court shall certify that the neglect or sioners person- 
refusal of such commissioners was willful or malicious, in a y iable * 
which case only such commissioners shall be personally liable 
for such judgment, and the same may be enforced against 
them in their personal and individual capacity. 

Sec. 111. When it shall be necessary to build, construct Appropriation 
or repair any bridge or road in any town, which would be an bJidge, nty for 
unreasonable burden to the same, the cost of which will be 
more than can be raised in one year by ordinary road taxes 
in such town, the commissioners of highways shall present a 
petition to the county board, of the county in which such 
town is situated, praying for an appropriation from the county 
treasury to aid in the building, constructing or repairing of 
such bridge or road and such county board may, a majority of 
all the members elect voting for the same, make an appropria- 
tion of so much for that purpose as, in their judgment, the 
nature of the case requires and the funds of the county will 

(1) Form of Notice to Commissioners of Highways of Adjoining Towns to 
join in Performing Contract for Building Bridge. 

To A. B., C. D., and E. F., Commissioners of Highways of the town 
of , county of : 

You are hereby notified to fulfill, on your part, the contract 
entered into by you [or by your board], with the undersigned com- 
missioners of highways of the town of , in said county, [or with 

the commissioners of highways of the town of- — , in said county], 

the day of , A. D. 18 — , lor building a bridge over river, at 

the point where the road leading from to crosses said river, by 

[here set forth the performance required as stipulated in the contract], and 

that unless you shall so perform on your part within days from 

this date, the undersigned, said commissioners of highways, will 
proceed, as empowered by law, and complete said bridge, and will 
claim of you the due proportion of expense thereof, chargeable to 
your town. 

Dated at- , this day of , A. D. 18—. 

Commissioners 

of 

Highways. 



j. is — . 
E. F, ■) 
G. H., [ 
I. J., J 



322 ROADS AND BRIDGES. [dIV. VI. 

justify ; said appropriation to be expended under the supervi- 
sion of an authorized agent or agents of the county, if the 
county board shall so\>rder.(l) 
when town Sec. 112. When it shall be necessary to build a bridge in 

raone b y°to°Duiid an y town wn i cn would require a larger sum of money to corn- 
bridge, plete than is authorized to be raised by taxation under the 
constitution upon a single year's assessment, the commissioners 
of highways shall petition the supervisor of the town to call a 
special town meeting to vote on the proposition " to borrow 
money to build a bridge," which said petition shall be signed 
by said commissioners in their official capacity, and by at least 
twenty -five freeholders of such town, and thereupon such 
petition shall be filed in the office of the town clerk of such 
town. Upon the filing of said petition, the supervisor shall 
order the town clerk, by an instrument in writing, to be signed 
by him, to post up in four of the most public places in said 
town, notices of such special town meeting ; which notice shall 
state the object, time and place of meeting, and the manner in 
Voting to be by which the voting is to be had, which shall be invariably by bal- 
lot, and shall be " to borrow money to build a bridge," when 
the voter desires to vote in favor of that proposition, and 
"against the proposition to borrow money to build a bridge," 
when the voter desires to vote against said proposition. The 
special town meeting shall be held, and returns thereof made, 
in the same manner as other special town meetings are now or 
may hereafter be provided by law ; and if it shall appear that 
a majority of the legal voters voting at said election shall be in 

(1) Form of Petition to County Board for an Appropriation to Aid in 
Building or Repairing a Bridge or Road. 

To the Board of Supervisors of the County of ,in the State of 

Illinois : 

The undersigned commissioners of highways of the town of , 

in said county, would respectfully represent that a bridge needs to 
be built [or repaired] over the river where the same is inter- 
sected by the highway leading from to in said town ; that 

the total cost of building said bridge [or as the case may be], will be 

dollars, which would be an unreasonable burden to said town, 

and more than can be raised in one year by ordinary road taxes 

therein; the amount raised by said taxes being only -dollars; 

wherefore, the said commissioners of highways hereby petition you 

for an appropriation of dollars from the county treasury of 

said county, to aid in building said bridge [or as the case may be]. 

Dated at this day of ,A. D. 18—. 

E. M., ) Commissioners 
■ A. T., [ of 

E. B.,J Highways. 

The foregoing form can be changed to suit the occasion of a road instead of a 
bridge. 



DIV. VI.] MISCELLANEOUS PROVISIONS. 

favor of said proposition, the supervisor and town clerk acting 
under the direction of the commissioners of highways of said 
town, shall issue from time to time, as the work progresses, a 
sufficient amount in the aggregate of the bonds of said town 
for the purpose of building such bridge ; such bonds to be of 
such denominations, bear such rate of interest, not exceeding 
ten per cent, upon such time, and be disposed of as the neces- 
sities and conveniences of said town officers require : Provided, Proviso that 
that said bonds shall not be sold or disposed of for less than behold for less 
their par value, and such town shall provide for the payment than par value - 
of such bonds and the interest thereon by appropriate 
taxation. (1) 

MISCELLANEOUS PROVISIONS. 

Sec. 113. Upon the petition of twelve legal voters, it shall Re-survey, 
be the duty of the commissioners of highways of each town, 
within a reasonable time, to employ a competent surveyor, 
and have any road or roads designated in such petition in their 
several towns re-survered, and plats thereof made, which plats 
and surveys shall be by them filed for record in the office of 
the town clerk : Provided, that this section shall not apply Pr(mso - 
where the same has been already done, unless the exact loca- 
tion of such road is uncertain. 

SecT. 114. The establishment of a new road on the route of Establishment 
a road already established according to law, shall not vacate Sid n roa^°etc. on 
the road previously established, unless such vacation is prayed 

(1) Form of Petition to Supervisor for Special Town Meeting to Vote on 
Question to Borrow Money to Build Bridge. 

To A. B., Supervisor to the Town of , in the County of 

and State of Illinois : 
The undersigned, commissioners of highways and twenty-five free- 
holders of said town, would respectfully represent that a bridge is 
necessary to be built over the river where the same is inter- 
sected by the highway leading from to in said town; 

that the total cost of building said bridge will be dollars, which 

would be a larger sum than is authorized to be raised by taxation 
upon a single years' assessment, and that it will be necessary to 
borrow money to build said bridge ; wherefore the undersigned here- 
by petition you to call a special town meeting to vote on the proposi- 
tion " to borrow money to build a bridge," as above set forth. 

Dated at this day of A. D. 18 — . 

W. K., I Commissioners 
J. L., J- of 

R. S., J Highways, 
and twenty-five freeholders. 

For form of notice of special town meeting, see ante, p. 211. 



324 ROADS AND BRIDGES. [DIV. VI. 

for in the petition, and so declared in the order establishing 
the new road. 
commissioners Sec. 115. The commissioners of highways of the several 
buiiSng Ctfor towns are hereby authorized to contract for the building and 
bridges. repairing of bridges in their respective towns, and they may 

let such contracts by a public letting to the lowest responsible 
bidder, upon proper notice being given by posting copies of 
such notice in at least three public places in their town, not 
less than ten days before the time of such public letting ; or 
if they deem it to be to the interest of their town, they may, 
When privately to an amount not exceeding twenty -five dollars, privately con- 
tract with persons, as they shall deem best, for putting bridges 
in good repair ; but in no case shall such contract exonerate 
such commissioners from liability for failure to keep such 
bridges in repair. (1) 

(1) Form of Contract for Building a Bridge. 

This contract made and entered into this day of , A.D. 18 — , 

between A. B., C. D., and E. F., commissioners of highways of the 

town of , in the county of , and State of Illinois, of the one 

part, and G. H., of , of the other part, witnesseth : 

That the said G. H , for the considerations hereinafter mentioned, 
does, for himself, his executors and administrators, promise and agree 
to and with the said commissioners of highways and their successors 
in office, that he, the said G. H., shall and will within the space of 

next after the date hereof, furnish all materials for the bridge 

hereinafter mentioned, and in a good, substantial and workmanlike 
nanner, erect, build, finish and complete to the satisfaction of the 
said commissioners of highways, their successors in office, a bridge 

over the river on the highway leading from to in 

said town, according to the following plans and specifications [here 
give plans and specifications']. 

In consideration whereof, the said commissioners of highways, in 
behalf of said town, promise and agree to and with the said G. H., 
his executors, administrators and assigns, that said town shall and 
will, well and truly pay, or cause to be paid, unto the said G. H., or 

his assigns, the sum of dollars, in manner following: [here state 

terms of payment]. 

In witness whereof, we have hereunto set our hands this day 

of , A. D. 18—. 

A. B., ") Commissioners 
C. D., \ of 

E. F., J Highways, 
G. H. 



Form of Notice of Letting Contract for Building or Repairing a Bridge. 

Public notice is hereby given that on the day of , A.D. 

18 — , at , in the town of , in the county of , and State of 

Illinois, the undersigned, commissioners of highways of said town, 
will publicly let to the lowest responsible bidder the contract for 

building [or repairing] a bridge over the river on the highway 

leading from to in said town, according to the plans and 



DIV. VI.] MISCELLANEOUS PROVISIONS. 325 

Sec. 11G. Provided, that the collector of taxes shall receive Road tax may 
from any taxpayer, in payment of said taxpayer's road and on^d5ges W ° rk 
bridge tax, any order of the commissioners of highways, on 
their treasurer, for work done on or material furnished for the 
construction or repairs of the highways or bridges, in any sum 
not to exceed the amount of such person's road and bridge tax 
then due. 

Sec. 117. Whenever a public road is ordered to be established public road 
or altered, according to the provisions of this act, which road gJSJJgh 
shall pass through or on inclosed land, the commissioners of inciosure. 
highways shall give the owner or occupant of such land sixty 
days' notice in w T riting, to remove his fences. If such owner 
or occupant does not remove his fence within sixty days after ^Jnera^o 
such notice, the commissioners shall cause the same to be remove fences, 
removed, and direct the road to be opened and worked : and 
such owner shall forfeit to such commissioners the sum of one 
dollar for every day he shall permit his fence to remain after Failuresotoda 
the expiration of said sixty days, and shall pay all necessary 
cost of removal, to be collected by said commissioners before 
any justice of the peace having jurisdiction. (1) 

specifications now on file in the office of E. B., town clerk of said 

town. N 

Dated this day of A. D. 18—. 

A. T., ) Commissioners 
E. M., \ of 

H. B., J Highways. 

The foregoing form of notice of letting contracts for building or repairing bridges 
is framed with reference to the practice of having plans and specifications filed in 
the town clerk's office for the convenience of persons wishing to bid for the con- 
tract. It would be proper for the commissioners of highways to pursue such a 
course, and to have the plans and specifications in at least a gpneral form, filed with 
the town clerk, and also to have them produced and made public at the time of the 
letting. The law seems to contemplate that the letting should be in the form of a 
public vendue. 

(1) Form of Notice for Removal of Fences. 
To Mr. J. S.: 
You will take notice that the commissioners of highways of the 

town of , in the county of , have laid out a public highway, 

agreeable to an order of said commissioners, bearing date the 

day of , A. D. 18 — , a copy of which is hereunto annexed ; which 

highway passes through certain inclosed lands owned [or occupied] 
by you. [It will be well here to describe the premises with reasonable 
certainty.'] You are therefore, hereby notified and required to re- 
move your fences from within the bounds of said highway, within 
sixty days after the service of this notice. 

H. TV., ) Commissioners 
S. Y., \ of 

H. S., J Highways. 
Dated at , this day of , A. D. IS—. 

In tin, removal of fences in case of improved lands, the intention of the 
Jaw is to give time for removal and rebuilding thereof. Where the land is unin- 
closed or fences are voluntarily removed, this portion of the law does not apply. 



326 ROADS AXD BRIDGES. [dIV. VI. 

rerdiemof Sec 118. The commissioners of highways shall receive for 

commissioners, their services the sum of one dollar and fifty cents per day for 

each day necessarily employed in the performance • of their 

duties, the same to be audited by the town auditors and paid 

out of the town funds. 

Where fences are voluntarily removed, and a subsequent owner of the land replaces 
them and again obstructs the road, he is not entitled to the benefits of the law, or 
notice to remove such fences. The law does not require an order to open the road, 
except in case of inclosed land and where there is a refusal to remove fences. See 
Hunter v. Jones, 13 Minn. R. It seems that a road passing through unimproved and 
uninclosed lands, is considered in contemplation of law, opened when established. 
Ferris v. Ward, 4 Gilm. R., 499. 

Where a road, after its survey and location, has not been opened for the use of the 
public, nor the proper notice given to the owner or occupant of the land to remove 
his fences, neither the commissioners nor any other person can remove a fence 
without becoming trespassers. Taylor v. Marcey, 25 111. R., 518. If the fences are 
removed without giving sixty days' notice, as required by the statute, all persons 
concerned therein are trespassers. Kelly v. Morton, 2 Cowen R., 424. 

An overseer of highways in proceeding to open a road by removal of fences, can- 
not justify in an action of trespass, by showing merely an order from the commis- 
-sioners of highways, directing him to open the road, if the legality of the road is 
questioned, he must show also that it was in all respects legally laid out and estab- 
lished. The commissioners, and all persons acting under them, must show that a 
case existed which justified the order by them. Guptail v. Teft, 16 111., R., 365; Dun- 
ning v. Mathews, id., 308. 

The commissioners can be made to respond in damages if they are misled as to the 
correct line of the road, and in attempting to open it, commit a trespass thereby. 
Bayer v. Tanner, 29 111. R., 135. A party pulling down a fence in such case, the bur- 
den is upon him to show that it was upon the location of the highway as established. 
Weed v. Sitbey, 40 Maine R., 356. 

A copy of the field notes of a survey of a public highway made by a 'county 
surveyor, but not under competent authority, and filed with a town clerk, the copy 
of which is made and certified by him, is not evidence to establish the location of a 
public road. Nor are such notes of a survey made by the same person after he has 
ceased to be the county surveyor. Gray el at. v. Waterman, 40 111. R., 522. 

Should commissioners of highways proceed [in obedience to the mandate of a 
court, to open a road after it had "been discontinued, they would be trespassers. 
Where a peremptory writ of mandamus was awarded against commissioners of 
highways, requiring them to open a certain road, it was held to be a sufficient excuse, 
on the part of the commissioners, for not obeying the Avrit, that after the writ was 
awarded, and before it was issued and served, "the road in question had been duly 
vacated. Commissioners of Swan Township v. People ex rel. Walden, 31 111. R., 97. 

And where a fence was removed from what was supposed to be a public highway, 
under direction of a resolution adopted at a town meeting, evidence of such resolu- 
tion is not admissible as a bar to the action, nor in mitigation of the actual damages 
sustained, for towns, have no such power, but such evidence is proper as tending to 
repel malice, and thus to mitigate punitive damages. Gray el al. v. Waterman, 40 111. 
R„ 523. 

In an action of trespass for removing a fence, the plaintiff, if he recover, may have 
the damage growing out of Its removal, and also for the loss of crops growing at the 
time, which resulted from the perpetration of the unlawful act. In such a case the 
wrong-doer is responsible for all the consequences directly resulting from the unlaw- 
ful act. Grey el al, v. Waterman, 40 111. R., 523. The same rule in Buckmaster v. Cool, 
12 111. R., 74. 

Where commissioners of highways had laid out a road in pursuance of law, but 
neglected to file their proceeding and a mandamus directed to their successors, com- 
manding them to open it, by mistake misdescribed the road, on application for a 
rule requiring the defendants to furnish the original application, and that the man- 
damus be amended thereby, it appeared that the paper sought for had remained in 
the hands of EL, a fDrmer'commissioner, and was beyond the control of defendants. 
Motion, therefore, denied as to the defendants. But "a rule was made upon H. that 
he file the paper with the clerk of the town, etc., or show just cause why he should 
not do so. People v. Vail, 1 Cowen R., 589. 

A mandartius to commissioners of highwavsto open and work a road will be grant- 
ed without regard to the near approach of the expiration of their offices; 
when the term of the office expires, their successors must obey the command of the 
writ People v. Collins,19 Wend. R., 56. But a mandamus is no"t a proper remedy to 
try the question of the location of a public highway, as between the public and the 
landholders over whose land it passes. The court had a discretion in granting or 
refusing the writ. People ex rel. Morgan v. Curyea et al., 16 111. R., 547. 

Where a road is used and traveled by the public as a highway, and is recognized 
and kept in repair as such, by the authority whose duty it is by law to open and 
repair public roads, proof of "these facts furnishes a legal* presumption, liable to be 



DIV. VI.] MISCELLANEOUS PROVISIONS. -]21 

Sec. 119. All highways laid out by order of the commis- Highways laid 
sioners or supervisors, on appeal, shall be opened within fivejjjj*™™^ 1 ?^^ 
years from the time of laying out the same. If not opened fi ve years, 
within the time aforesaid, the same shall be deemed to be 
vacated.(l) 

rebutted, that such road is a public highway. Eyman v. People, 1 Gilm. R., 4 ; Nealy 
v. Brown, id., 10. 

Parol evidence is admissible to show where a road is located. Although there 
should be some uncertainty as to the precise location of the road, yet if the evidence 
be such as to convince the jury as to its location, it is sufficient'/or them to act upon. 
Nealu v. Brown, 1 Gilm. R., 10. 

If the public is to be charged with the abandonment of a road, the proof of (he 
fact must be accompanied by the further proof that another road has been adopted 
in its stead. A public road, established by public authority, continues as such until 
it shall be vacated by a like authority. Champlin v. Morgan, 20 111. R., 181. 

The notice for the removal of fences should be served by leaving a copy with 
the owner or occupant, and a true copy should in all cases be retained by the com- 
missioners, as actual notice must be proved should it ever be questioned, and will 
not be presumed. The presumption which is sometimes indulged in favor of public 
officers, does not extend to such a case. Case v. Thompson, 6 Wend. R., 634. 

A notice requiring a person to remove two certain rail fences built by him across a 
public road, and specifying the particular place of obstruction by stating the direc- 
tion of the fences made by him, was held sufficient. Ferris v. Ward, 4 Gilm. R., 499. 

Taking private property for public use. — The right of taking private prop- 
erty for public use, is a right inherent in all governments, as necessary to its exist- 
ence and protection. But, the constitution of the United States, and those of the 
several States, have provided that compensation shall be made to the owner. Sinco 
the new era of internal improvements in this country, which has been inaugurated 
within the past half century, there has been much controversy as to the pow er of the 
power of legislature under this general constitutional provision. 

It has been held in numerous instances, that payment or assessment of damages of 
the owners of lands through which a public highway is laid, is not a condition pre- 
cedent to the right to open the road ; and where a law authorizing the taking of 
private property for public purposes provides for a just compensation to the owner, it 
is not unconstitutional because it omits to make the assessment and payment of 
damages a condition precedent to an entry upon and occupation of the premises. It 
is deemed sufficient if the law makes definite and certain provisions for ultimate 
compensation to the owner. Baker v. Johnson, 2 Hill R., 342 ; Smith v. Helmer, 7 Barb. 
R., 416 ; Itobottomv. McClure, 4 Black. R., 595. But not so, it seems, in case of a rail- 
road or private corporation. Bloodgood v. Mohawk & Hudson River It. R. Co., 18 
Wend. R., 9. 

The principle upon which the exception is made in regard to private corporations, 
is that from the nature of things they afford no security for the payment of the pro- 
perty sought, having in contemplation of law no adequate fund to which the party 
affected may resort for payment, whereas in case of a public corporation, they have 
a common treasury, and public policy is in favor of sustaining the public credit. Every 
citizen is bound to repose faith in the government. The presumption is that the 
public treasury, whether that of a State or municipal corparation, is adequate at all 
times to meet all lawful demands, and that the party entitled to it, will receive pay- 
ment promptly on demand. 

The right to take private property for public use is called the right of Eminent 
Domain. It is allowed to be exercised by railroad companies and other corporations 
of like nature, on the principle that they are a public necessity, and in exercising 
this rio:ht, thev act as the'.agents of, and represent the public. Swan v .Willia?ns 2 
Mich. R., 427 ; RobbinsV. Mil. df,H. Ii. R. R. Co., 6 Wis. R., 696 ; Shcpardson v. Mil. & Bel 
R. R. Co., el al., id., 605. 

Th«. constitutional provision respecting the taking of private .property for public 
purposes, has no application to the case of a dedication of a highway by the owner, 
or where, from his long acquiescence in the public use of it, a dedication is presum- 
ed by law. Bumpus v. Milter, 4 Mich. R., 159. 

Land which is taken and used for a highway is taken for public use withiu the 
meaning of the constitution. Norton v. Peck, 3 Wis. R., 714. But it is not so taken or 
appropriated until the road is opened by the commissioners. Evans ex rel., etc., v. 
James at al., 4 Wis. R., 408. 

(1) To avoid the vacation of a road, it is necessary that it should be opened its 
entire length within five years. It is not sufficient to open only a part of it. Green 
et al v. Green, 34 111. R., 320 If any part is permitted to remain fenced up, and the 
travel turned another way to avoid the field, this will vacate so much of the road 
as remains fenced np. Lyon v. Mitnson, 2 Ccw. R., 426. Such non-user operates as an 
abandonment of the road; and whether the right of way has been obtained by 
release, or by condemnation, or payment of damages, the right of the owner to 



328 ROADS AND BRIDGES. [DIV. VI. 

commissioners Sec. 120. The highway commissioners of each town shall, 
report*? super- annually, ascertain, as near as practicable, how much money 
visor amount of must he raised by tax on real and personal property for the 

money needed , . , /. „ _ ., . r ^ £ j , 

for bridges, etc. making and repairing ot bridges, the payment ot damages by 
reason of the opening, altering and laying out of new roads, 
the purchase of the necessary tools, implements and machinery 
for working roads ; the purchase of the necessary material for 
building or repairing roads and bridges, the pay of the over- 
seers of highways during the ensuing year ; and shall levy a 
tax on all the real and personal property in said town, not 
exceeding forty cents on the one hundred dollars ; and they 
shall give to the supervisor of the township, and in Cook 
county to the county board, a statement of the amount neces- 
sary to be raised, and the rate per cent, of taxation, signed by 
said commissioners, or a majority of them, on or before the Tues- 
day next preceding the annual September meeting of the board of 
supervisors, or the county board in Cook county, who shall cause 
the same to be submitted to said board for their action at such 
September meeting of said board : Provided, that if the com- 
missioners of highways, or any three legal voters, shall give 
notice, by posting notices in at least three of the most public 
places of the town at least ten days before the annual town 
meeting, that a larger amount of money will be required for 
the purpose of constructing or repairing roads or bridges in 
their town than can be realized from the real and personal 
property tax authorized by law to be assessed by the commis- 
sioners, the legal voters present at such meeting may author- 
ize an additional amount to be raised by tax, not exceeding 
sixty cents on each one hundred dollars' valuation, and said 
board shall cause the same to be extended on the tax books. 



resume the exclusive use and occupancy 'of the land is complete and unqualified 
after such abandonment. Green et al. v. 'Green, 34 111. R., 326. 

If the town authorities fail to procure the right ot way until the day before the 
five years expire, and it is apparent that the road cannot be opened within the time, 
a court of equity may restrain the town officers from opening a small portion of the 
road before the time expires. Green et al. v. Green, 34 111. R., 320. 

Where the five years, within which a public road is required to be opened, 
expires pending litigation in respect to thfe establishing of the road, the time con- 
sumed in the litigation must not be estimated as a par of the five years. Commis- 
sioners of Highways v. The People ex rel., 38 111. R., 347. 

The failure bv the commissioners of highways to cause a public highway long in 
use, to be opened to its full statute width for a period of thirty years, does not oper- 
ate to extinguish the rights of the public to the parcels not so opened and worked. 
Walker v. Caywood, 37 N. Y. R., 51. 

Where, after the making of an order in 1839, laying out a road, the road was that 
year open in fact, and during 1839 and suceeding years, was open and partially worked 
throughout the route, and was traveled by tne public, more or less, every year from 
the time of its being laid out, opened and worked ; held, that this was an opening 
of the road within the time required by the statute. Marble v. Whitney, 28 N. Y. R. 
(Tiffany), 297. 

It seems that a road passing through unimproved and uninclosed lands, is consid- 
ered, in contemplating of law, opened when established. Ferris v. Ward, 4 Gilm. R., 
499. 



PIV. VI.] MISCELLANEOUS PROVISIONS. 329 

Sec. 121. According to the amount certified as aforesaid, Duty of county 
the county clerk, when making out the tax books for State clcrk * 
and county taxes for the collector, shall extend the necessary 
tax in a separate column against each taxpayer's name, or tax- 
able property, as other taxes are extended, which shall be col- 
lected the same as State and county taxes. 

Sec. 122. It shall be the duty of the county clerk to make certificate of 
out and deliver, on demand, to the treasurer of the commis-^gf r ^ t J ftax 
sioners of highways, a certificate of the aggregate amount of 
tax so levied and placed among the tax books. 

Sec. 123. The tax so collected shall be paid to the treas- Tax to be paid 
urcr of the commissioners of highways, except as provided in cSmSfssSuers 
section sixteen (16) of this act, by the collector, as fast as the 
same is collected, except such rate per cent, as shall be allowed 
for collecting the same. 

Sec. 124. The commissioners of highways shall furnish to List of tax pay- 
the clerk of the county court, previous to the first day of ers * 
October in each year, a list of taxpayers (alphabetically 
arranged) of each district. 

Sec. 125. Any tax or moneys collected by the township or Taxes collected, 
county collectors of the various counties for road and bridge S^nompaSr 
purposes under the provisions of an act entitled "An act in 
regard to roads and bridges," approved April 10, 1872, shall 
be paid by said collectors to the treasurer of commissioners of 
highways, and be by said commissioners, after reserving suffi- 
cient to pay for the purchase of implements and the payment 
of damages, and the pay of the overseers, distributed to the 
overseers of highways of the various road districts from which 
it was collected, as near as may be. Said moneys shall be 
used by said overseers in improving the roads -and bridges in 
their respective towns. 

Sec. 126. That an act entitled "An act in regard to roads clause. 1 s 
and bridges," approved April 10, 1872, and in force August 
15, 1872, so far as the same relates to counties under town- 
ship organization, and also all other acts or parts of acts incon- 
sistent herewith, be and the same are hereby repealed : Pro- 
vided, that the repeal of said act shall not affect any suit or 
proceeding pending, or impair any right existing at the time 
this act shall take effect. 



330 ROADS AND BRIDGES. [DIV. VI. 

ERECTION AND MAINTENANCE OF BRIDGES BY TWO OR MORE 

TOWNS. 



Lawn 1872. 
pgT. 207. 



Sec. 1. That whenever the supervisors of two or more 
^872*. Mar,22 ' towns i n counties organized under the township organization 
v Y ' law, shall be petitioned by twelve legal voters who are free- 
Erection and holders residing within each town, praying for the erection 
of bridges by and maintenance of a bridge in either or any of such towns, 
towns'. more m which petition shall be designated the place where the same 
Petition shall be constructed, it shall be the duty of such supervisors 

to make an estimate of the expense which may be incurred in 
the erection of such bridge, and to agree among themselves as 
to what proportion of such expense it would be equitable and 
just that each of such towns should bear and sustain in the 
erection of such bridge.(l) 
Estimate in Sec. 2. In case the supervisors can so agree, it shall be 

writing. their duty to make out, in writing, such estimate of the total 

expense of building such bridge, as in the petition set forth, 
and general character of such proposed bridge, and the pro- 
expense 1 portion of such expense to be assigned to each town, and to 
each^owru deliver a copy thereof, signed by all of such supervisors, to 
each of such supervisors so concurring therein, and each 
supervisor to whom such copy is delivered shall deposit the 
same with the town clerk of his town. (2) 
c^Suting Sec. 3. It shall be the duty of the town clerk to include in 
expensesub°- f * ne not i ce °f tne nex ^ annual town meeting, a statement that 
muted to vote, the question will be submitted, at such town meeting, whether 

(1) Form of Petition to Supervisors of two or more Towns to Build a 

Bridge. 

To A. B., supervisor of the town of , C. D., supervisor of the 

town of and E. F., supervisor of the town of , all in the 

county of and State of Illinois. 

The undersigned, twelve legal voters who are freeholders residing 
within each of the above named towns, hereby petition you to erect 
and maintain a bridge over the river where the same is inter- 
sected by the public highway leading from to in said 

town of . 

Dated at , this day of , 18 — . 

[Signed by 12 legal voters of each town.'] 

(2) Form of Estimate of Supervisors oftivo or more Towns of Expense, etc., 

of Building a Bridge. 

The undersigned, A. B., supervisor of the town of , C. D., 

supervisor of the town of >. and E. F., supervisor of the town of 

, all in the county of and State of Illinois, do estimate 

the total expense of building a bridge in the said town of 

over the river on the highway leading from to 

in said county, at dollars ; one half of which shall be borne by 

the said town of ; one third by the said town of , and one 



DIV. VI.] ERECTION AND MAINTENANCE OF BRIDGES. 381 

sucli town will contribute the proportion of the expense so 
assigned such town towards the erection of such bridge. (1) 

Sec. 4. At the regular town meeting in each of such towns, Ballots, form of. 
the qualified voters therein may each cast a ballot in the fol- 
lowing form : " For appropriation to build bridge," or 
" Against appropriation to build bridge." If a majority of 
the votes cast on the question in each of said towns shall be 
for such appropriation, then the agreement as to the propor- 
tion of such expense which each of such towns should so sus- 
tain for such purpose, shall be deemed to be ratified by and 
obligatory upon such towns respectively : Provided, that if Proviso, 
the proposition so submitted fails to receive a majority of the 
votes cast on the question, in any of such towns, the same 
shall not be obligatory upon any or either of such towns : Pro- Further pro- 
vided, further, that if the supervisor or supervisors of any 
such town or towns, shall, at any time thereafter, deem it 
proper or expedient to submit the question again to a vote of 
such town or towns, as provided in and by this act, it shall 
and may be lawful so to do. 

Sec. 5. In case such proposition is ratified in all of the J£§fied°boMd 
towns to which the same shall be so submitted, the supervi- of supervisors 
sors (and assistant supervisors, if any) of such towns shall col- bridges, 
lectively constitute a board, w T hich shall be authorized to erect 
such bridge and to make all necessary contracts therefor, in contacts mak ° 
behalf of such towns, as shall so unite for that purpose, and 
the expense of erecting such bridge shall be borne by such Expense, bow 
towns respectively, in proportion to the amount of such expense borne - 
so assigned to and ratified by such towns as aforesaid, but 
such board may make joint contracts in behalf of all such 
towns, in writing, for the erection of such bridge : Provided, Proviso, 
that no such contract shall be binding unless concurred in by 
a majority of the board. (2) 

sixth by the said town of P> The general character of said 

bridge shall be as follows : [liere briefly slate plans and specifications']. 
Dated at , this day of , 18 — . 

A. B. Supervisor of the Town of . 

C. D. Supervisor of the Town of . 

E. F. Supervisor of the Town of . 

(1) For form of notice of annual town meeting see ante, p. 201-2. The statement 
required by this section should be inserted in the notice of the town meeting, and 
may be in the following words : 

"And that at such meeting the question will be submitted whether 
said town will contribute the proportion of the expense assigned to 

it of building a bridge over the river on the highway leading 

from to in the town of in said county." 

(2) For form of contract for building a bridpe, see ante, p. 324, which can be varied 
to suit the occasion of a contract made with the board of supervisors. 



332 



ROADS AND BRIDGES. 



[DIV. VI. 



Town may levy 
tax. 



When and how 
bonds may be 
issued. 



Proviso. 
Further proviso 



Bonds, how 
signed. 



Supervisor 
authorized to 
negotiate bonds 
and use 
proceeds. 



Bonds of 
supervisor. 



Condition of. 



Sec. 6. Any town so voting to bear a portion of the expense 
of building such bridge, may levy a tax to raise the whole 
amount so assigned to such town, or any part thereof, in any 
one year ; or, when so directed, by a vote of the town, at any 
annual or special town meeting, the supervisor thereof may 
issue bonds of such town for the whole or any portion of the 
amount of such appropriation, which bonds shall be payable at 
such times and bear such interest as may be determined by a 
vote of the town meeting authorizing the same to be issued : 
Provided, that no such bonds shall run for a greater period 
than five years: And provided, further, that such supervisors 
shall not negotiate, sell or in any way dispose of any one or 
more of said bonds for less than ninety cents on the dollar, of 
each and every dollar, for which they are issued, nor shall such 
bonds draw a greater rate of interest than ten per cent, per 
annum. 

Sec. 7. Whenever any such bonds shall be so issued, the 
same shall be signed by the supervisor and town clerk of the 
town, in their official capacity, and shall contain on their face 
a reference to the vote of the town authorizing the same to be 
issued. 

Sec. 8. The supervisor of each town shall have the author- 
ity to negotiate such bonds in behalf of the town, as provided 
in section six, and to use the proceeds thereof, and any money 
that may be raised by tax for that purpose, in paying the pro- 
portion of the expense of building such bridge assigned to his 
town in the manner aforesaid. 

Sec 9. Before receiving any such funds or bonds the super- 
visor shall give a bond to the town, in a sufficient penalty to 
cover the amount of all such bonds and funds, with sureties, 
to be approved by the commissioners of highways, conditioned 
for the faithful appropriation of such bonds or funds to the 
purpose for which the same was voted by the town.(l) 



(1) Form of Supervisor's Bond in regard to Bridge Funds. 

Know all men by these presents, that we, A. T., E. B., and E. M., 

are held and firmly bound unto the town of , in the county of 

, and State of Illinois, in the sum of dollars, for the payment 

of which, well and truly to be made, we bind ourselves, our heirs, 
executors and administrators, firmly by these presents. 

Sealed with our seals, and dated this day of , A. D. 18—. 

The condition of the above obligation is such, that whereas, the 
above bounden A. T., supervisor of the town of , is about to negoti- 
ate and sell the bonds of said town, directed to be issued by a vote 
of said town, at an annual [or special] town meeting, held on the — 

day of , A. D. 18—, at , in said town, to defray the proportion 

af the expense assigned to said town, of building a bridge over the 



DIV. VI.] ERECTION AND MAINTENANCE OF BRIDGES. 333 

Sec. 10. After any such bridge shall be so built, the same control and 
shall remain in the control of the supervisors of, and be main- 21|Jj^ nance of 
tained and kept in repair by, the towns so contributing towards 
the erection thereof, and each of such towns shall contribute 
towards such maintenance in the same proportion as it voted 
toward such erection of the bridge : Provided, that if any Proviso - 
town, other than the town or towns in which the bridge is 
located, shall vote, at any annual town meeting, that it will no 
longer contribute towards the maintenance of such bridge, it 
shall thereafter be relieved from such obligation, and shall no 
longer participate in the control of such bridge. 

river, on the highway leading from to , in the town of 

, in said county. 

Now, therefore, if the above bounden A. T., supervisor of the said 

town of , shall faithfully appropriate said bonds and all money that 

may be raised by tax to build said bridge, and which may come into 
hishands as such supervisor, to the purpose for which the same was 
voted by said town, then this obligation to be void, otherwise to 
remain in full force and effect. 

A. T., [seal.] 
E. B., [seal.] 
E. M., [seal.] 



DIV. VII.] DRAINAGE. 335 

DIVISION VII. 

DRAINAGE. 



LAWS 1807, P. 
02, FEB. 25. 

Section 1. So much of an act entitled "an act to amend to act v — "v"— ^ 
establishing commissioners to facilitate the drainage of wet lands," jjj° mmisdonero 
approved February 16, 1865, be so amended that in all the coun- be drainage 
ties of this state adopting township organization, the commissioners commi8Sloner8 - 
of highways shall be and are hereby constituted ox officio a board 
of drainage commissioners in their respective towns. 

Sec. 2. Hereafter, when any person or persons owning wet or Laws 1869, p. 
overflowed lands, in any county in this state under township organi- ' pri 
zation, desiring to drain the same, shall find it necessary to run 
across neighboring lands, whose owner or owners will not make nor 
consentfor a drain to be made across his, her or their lands, then 
the person or persons desiring the drain, may make application to Application to 
the said drainage commissioners, in writing, stating through whose commurionera 

•* 1 -i. • j. x. J 1 •• •• J- x for drain. 

premises, 11 known, it is necessary to run such drain in order to 

effect a proper outlet for the same ; and he, she or they shall also 

funish to each owner or owners, his, her or their agent or agents, 

if known, through whose lands it is necessary to pass, ten days' Ten d . a y 8 ' not5c « 

notice, in writing, of the time and place the commissioners will nwum ° 

meet to hear and examine such application for a drain, and in case 

any such owner, his, her or their agent, shall be unknown or shall 

be a non-resident of the county in which such drain is to be located, 

then such notice shall be posted in three public places near the land Notice - 

through which the drain is to pass. (1) 

(1) Form of Application to Commissioners to lay out a Drain. 

To the Commissioners of Highways of the town of , in the county of 

, and ex officio Board of Drainage Commissioners in said town. 

The undersigned person (or persons) owning wet lands (or overflowed 

lands) in said town of , described as follows, to-wit: (describe the 

lands which it is desired to dratn) desires to drain the same. In order to 
effect a proper outlet for the proposed drain, it is necessary to pass 
through the premises owned by C. D. and E. F. in said town. The prem- 
ises of C. D. are described as follows : (describe the premises with reason- 
able certainty.) The premises of E. F. are described as follows : (describe 
the premises.) The said C. D. and E. F. will not give their consent for 
the desired drain to pass through their said lands. Said drain is to com- 
mence in said town of . The undersigned, therefore, applies to you 

and requests that you will proceed to lay out a drain through said prem- 
ises of C. D. and E. F., in conformity with the law in such cases. 

Dated this day of , A. D. 18—. A. B. 

Form of notice to owner or agent of intended application to Commissioners 

to lay out a Drain. 
To C. D. : (or if unknown, "To whom it may concern:") 

Sir: — You will take notice that I intend, on the day of , A.D. 

18 — , to make application to the commissioners of highways of the town 



another day. 



336 DRAINAGE. [DIV. VII. 

i07 W i 1 rii , iI" .Sec. 3. The commissioners shall agree upon a time and place 
Commissioners when and where they will meet to determine npon such application, 
*o agree on time no t more than thirty days from the date of the receipt thereof, and 
meeting. 60 shall make out, in writing, a sufficient number of notices of the 
time and place of such meeting, which shall be served on the respec- 
tive owner or owners, his, her or their agents, through which such 
drain is to pass, by the applicant or applicants therefor, as required 
by the preceding section of this act ; and if anything shall prevent 
the meeting of the commissioners upon the day specified, then they 
Sw^lv* shall, as soon thereafter as possible, appoint another day for meet- 
ing, and they themselves shall give notice of such meeting to the 
parties interested, as required in the preceding section hereof; but 
if any one or more of the commissioners shall appear at the time 
Absence of com- an( j pj ace fixed for the first meeting, such commissioner or commis- 

missioners. . - 1 , . .. ° 7 . • i -i • -,n ■, 

sioners may proceed to select and associate with himself or them- 
selves, one or more competent person or persons not directly interested 
in the location of such drain, sufficient to make up the number con- 
in case commie- stituting the board when all are present ; and in case either of such 
estedT 6r " commissioners shall be an owner or interested in the land through 
which such, drain is to pass, such commissioner shall not be compe- 
tent to serve on such board, and his place therein shall be supplied 
in like manner as if he were absent ; and the board, when so con- 
stituted, shall proceed to hear and determine upon said drain in 
like manner and with like powers as though no vacancy had been 
created therein by absence or interest on the part of any of the 
commissioners provided for by the first section of the said act. (1) 
determine 01 ! 6 / 8 * ^ EC * ^' Upon meeting, the commissioners shall proceed impar- 
necessary,'to tially to determine whether in order effectually to drain the land 
'ISa^proposed. °f tne P art Y or parties making the application, it is necessary to 
pass through the land proposed, and if they shall find it necessary 

of , to lay out a drain through lands owned by you in said town, (or 

for which you are agent) described as follows, to-wit: (Here describe the 
lands as in the application,) for the purpose of draining certain lands 
owned by me, and described as follows: (describe the lands as in the 
application.) 

Dated this day of , A. D. 18—. A. D. 

Note.— See new constitution, Art. 4, \ 31. 

(1) Form of Notice of meeting of Commissioners to determine upon application 

to lay out a Drain. 
To C. D.: 

Sir: — You are hereby notified that the commissioners of highways and 

ex officio board of draining commissioners, in the town of , will meet 

at (state the place,) on the day of , A.D. 18 — , at o'clock 

— M., to determine upon the application of A. B. to lay out a drain 
through lands owned by you (and other lands) mentioned in his said 
application. 

Dated this day of , A.D. 18 — . 

L. M., ") Commisioners 
0. P., \ of 

E. S.,J Highways. 



DIV. VII.] DRAINAGE. 337 

so to do, they shall then determine also the direction which the Direction and 
drain shall be run, and also the breadth of the same, granting breadthofdrain - 
always that the depth shall be such as to produce a current. 

Sec. 5. The commissioners shall also determine whether the pro- Commissioners to 
posed drain will be of any practical benefit to the land through p^eddraln i?a°" 
which it is to pass, and if so, what proportion of the drain the said benefit , t 1 ° land u it 

* J >rr x/. i passes through. 

land owner or owners shall make, or cause to be made. It the 
commissioners shall be of opinion that the drain proposed will be 
of sufficient benefit to the land through which it is desired to pass, if drain is a ben- 
then they shall decide that the person or persons owning the same, ffnVs owner re 
shall make or cause to be made the entire drain running across his quired to make 
or their lands, giving a reasonable time for completing the same, 
not exceeding six months nor less than thirty days. But if they 
shall be of opinion that the drain proposed will not be of sufficient cases where 
benefit to the parties owning the land to compensate him or them ^Jjjjjj 8 not of 
for constructing the entire drain, then they shall decide what 
portion of the same he or they shall make or cause to be made, 
giving a reasonable time for completing the same; and the party Party desiring 
or parties desiring the drain shall be at liberty to complete the d |™° r °£aind!!r. 
remainder according to the specifications of the commissioners, at 
his or their own expense. 

Sec. 6. But if the person or persons through whose land the L«ra 1869, p. 
drain is ordered to pass shall neglect or refuse to make or cause the w , ' *"„ " 

.* . Or _ When person 

same to be made within the time and according to the specifications neglects to make 
fixed by the commissioners, then and in that case, it shall be the forested may " 
duty of the commissioners, on being notified by the applicant or enter and make 
any person interested, to proceed, as soon as practicable, and cause 
said drain to be made on as favorable terms as can be obtained, 
giving a reasonable time for completing the same, and shall there- 
upon assess the necessary cost of such drain against the land through 
which it is to pass, and shall return the same to the county clerk 
of the countv in which such ditch is located, who shall enter the posts be entered 

" DV CiBTk 

amount so assessed upon the tax books of said county, with the 
other taxes against said lands, and such amount shall be collected 
and shall be a lien upon such land in the same manner as such 
other taxes; and when the same shall have been collected, the 
amount shall be paid to the drainage commissioners, to be by them 
paid to the person or persons whom they shall have procured to 
to make such drain. The provisions of this section shall be appli- Pr ° vi ! i0D8 i ? vp } [ ~ 

, . .. . . . i i • t i -i • . t i *i cable to all lands. 

cable to all lands through which such drain is to pass, whether the 
same shall belong to residents, non-residents, railroad or other cor- 
porations or companies. 

Sec. 7. If the commissioners shall be of the opinion that the When dTain is a 
drain, if made, will be of damage to the land through which it is to be assessed to 
proposed to pass, then they shall assess the amount of the damage J®"®" de8irin s 
to be paid by the person or persons desiring the drain, after pay- 
ment of which, the party or parties so desiring the drain shall be 
allowed to construct the same at his or their own expense. But in 
no case shall the commissioners order a drain to be made where 



388 DRAINAGE. [DIV. VII. 

ducted off be C ° n ^ e water cannot be conducted into a lake, or pond, or river, or 

other outlets or channels. 
Commissioners to g EC# 8. The commissioners, after having decided either in favor 

note their decis- n . t • /» i • i 11 ..-,.. 

ion on buck of ^, 01 or against the application for a dra:n, shall note their decision 
application. on ^e back of the application, and file the same in the office of the 

town clerk, and the clerk shall enter upon his book the date of 

filing. (1) 
Bionen3. C01Dmi8 " Sec. 9. The pay of the drainage commissioners shall be the same 

as is now allowed by law for their services as commissioners ot 

(1) Form of Decision of Commissioners to be noted on the back of the applica- 
tion. 

. County, \ 

Town of , / SS * 

The commissioners of highways of said town having met at , on 

the day of , 18 — , at o'clock — M., being the time and 

place fixed for meeting, to determine upon the within application, pursu- 
ant to agreement, * and due notice to all parties interested, and having 
duly examined the premises in question, do determine that, in order 
effectually to drain the land of the person making the within application, 
it is necessary to pass through the lands of the said C. D. and E. F. as 
proposed. We have, therefore, laid out a drain across said lands running 

in an direction (or as the case may be) through the same, the location 

of which is more particularly shown by the annexed plat. (It would be 
advisable to annex a plat of the lands, showing the location of the drain,) and 

that said drain shall be feet in breadth at the top and feet at 

the bottom, (or as the case may be, setting forth such further dimensions or 
directions as may be deemed proper.) That said drain will be of some prac- 
ticable benefit to each parcel of land through which it runs, and that each 
owner mentioned within shall make the first ten rods thereof on his said 

land (or as the case may be,) which each should complete by the day 

of , A.D. 18—. 

(Or say thus, according to circumstances:) Said commissioners are of 
opinion that the drain proposed will be of such benefit to the lands 
described within, through which it is desired to pass, that the persons 
owning the same should make the entire drain across their said lands, 
and which each should complete by the day of , A.D. 18 — . 

(In case damages are allowed, then say:) Said commissioners are of 
opinion that said drain, if made, will be of damages to the said lands 
through which it is proposed to pass, and do assess the damages of said 
C. D. at $ , and the damage of E. F. at $ . 

Dated at , this day of , 18 — . 

L. M., ") Commissioners 
0. P., I of 

R. S.,J Highways. 

Note — It is believed that the foregoing suggestions are sufficient to enable the com- 
missioners to frame an order to 6uit the occasion of each particular case that may arise 
under the law. 

Where all the commissioners do not appear, and the vacancies are supplied, insert in the 
foregoing order, the following words at the beginning, down to the *. 

"Two (or one) of the commissioners of highways of said town, having 

appeared at on the day of , 18 — , at o'clock — M., 

being the time and place fixed for meeting to determine upon the within 
application, and the other commissioners failing to appear, we, the 
undersigned commissioners, did proceed and elect T. U. and V. W., com- 
petent persons, to make up the number of the board." 



DIV. VII.] DRAINAGE. 339 

highways, and shall be paid by the person or persons benefitted by 
t lie drain, and be determined by the commissioners. 

^ec. 10. Either party feeling aggrieved by the decision of the Party aggrieved 
commissioners, either in location or failing to locate the drain, may Kff^daya!* 1 ' 
at any time within fifteen days from the filing of such decision, 
appeal from the same by giving ten days' notice in writing to the Tea days' notice, 
opposite party or parties. Said appeal shall be taken before the 
supervisor, one justice of the peace, and the town clerk of the Appeal t0 whom 
town in which the drain is to originate: Provided, that in case taken, 
either of these persons shall be interested personally in the land or incase if interest 
lands through, which it is proposed to pass, or shall fail to attend 
on the day set to meet, then the one or two shall select some other 
disinterested person or persons to act with them. (1) 

Sec. 11. The supervisor, justice of the peace and town clerk, (in Time to be fixed 
case none are interested as aforesaid, and if interested, then those P b ^J iearing ap " 
selected) shall, within the fifteen days, fix upon a day when they 
will review the action of the said drainage commissioners, and hear 
the reasons for and against the laying of the drain. They shall r n case decision 
then, after so hearing, determine whether the action of the com- ta reversed - 
missioners was in their judgment proper, and if they reverse the changes to be 
decision of the commissioners in whole or in part, they shall state the specified in 
same in writing, specifying what changes they have made, whether 
they have re-located the drain, or re-apportioned the labor, or re- Jf*^ 6 "^ ** 
assessed the damage, if any there be, which statement shall be filed clerk's offlc*. 

(1) Form of Appeal from Decision of Commissioners. 

To G. S., Supervisor; I. J., one of the Justices of the Peace; and K. L., 
Town Clerk of the town of , county of : 

The undersigned feeling aggrieved by the decision of the commission- 
ers of highways, of said town of , in locating [or failing to locate) 

a certain drain applied for by me across the lands of C. D. and Til. F,, in 
said town, set forth in my application, upon the back of which the decision 
of said commissioners is noted, and which was filed in the town clerk's 

office on the day of , A.I>. 18 — , does appeal to you from said 

decision to the end that you make review the same as provided by law in 
such cases. 

Dated this day of , A.D. 18—. A. B. 

Form of Notice of Appeal from Decision of Commissioners. 

ToC. D.: 

Sir: — You will take notice that I shall, on the day of , A.D 

18 — , take an appeal, in accordance with the law in such cases, to G. H., 
supervisor; I. J., one of the justices of the peace, and K. L., town clerk 

of the town of , from the decision of the commissioners of highways 

of said town, in locating a certain drain applied for by me (or as the case 
may be,) across lands owned by you (as the case may be) described in my 
application, upon the back of which application the decision of said com- 
missioners is noted, and was filed in the town clerk's office on the — — 
day of , A.D. 18—. . 

Dated this day of , A.D. 18—. A. B. 



340 



DRAINAGE. 



[DIV. VII. 



Decision final. 



Compensation of 

officers. 



Costs, bj -whom 
paid. 



When fees paid 
from town fund. 



Drain through 
non-resident 
htnds, cost to be 
assessed against 
same. 

Assessment to be 
returned to 
county clerk. 



Amount to whom 
paid. 



Laws 1865, p. 
52, Feb. 16. 



Laws 1869, p. 
167, April 11. 

Extended to 
coal lands and 
dines. 



with the town clerk for inspection, and record the same, and their 
decision shall be final in all cases pertaining to the subject. (1) 

Sec. 12. In all cases of appeal, the persons hearing and deciding 
the same shall be entitled to two dollars per day for the time neces- 
sarily employed in the case; and if the action of the drainage com- 
missioners is sustained, then the cost shall be paid by the party 
taking the appeal. But if said decision shall be reversed in whole 
or in part, then the pay of the said ofiicers shall be paid in the same 
manner as specified in section nine of this act. 

Sec. 13. In all cases where the commissioners shall have ordered 
a drain through the lands of a non-resident owner or owners, and 
such owner or owners will not make nor pay for making such drain 
as ordered, then it shall be the duty of the commissioners to assess 
the necessary cost of constructing the drain against the land, and 
return the same to the county clerk in such county, who shall enter 
the amount with other taxes, against the said lands, and when the 
same shall have been collected as other taxes are collected, he shall 
pay the amount to the person or persons making or causing the drain 
to have been made. This act shall not be construed to conflict with 
existing laws for drainage in the county of Cook, but in all other 
counties having township organization, it shall be alike effective. 

Sec. 14. Nothing in this act shall authorize the assessment of 
more than one-half the expense or cost of any drain upon unin- 
closed lands through which such drain may be run. 

Sec. 14a. That the provisions of this act and the several acts to 
which this is an amendment, shall be and the same are hereby 
extended to all cases where any person or persons, company or cor- 
poration is or shall be desirous of draining any coal land, bank or 
mine, in any county in this state which has or shall hereafter adopt 
township organization, for the purpose of working, mining or dig- 
ging coal therefrom, and shall also apply to water pumped or drawn 
from any such coal mine, bank or coal land to the surface, or run- 
ning therefrom. 



(1) Form of Statement of Supervisor, Justice of the Peace and Town Clerk 
of their Decision on Appeal. 

— C ° unt ^ \ss. 
Town of . J 

An appeal having been taken by A. B. to the undersigned supervisor, 

justice of the peace and town clerk of said town of , from the decision 

of the commissioners of highways of said town, filed in the town clerk's 

office on the day of , A.D. 18—, in locating a certain drain 

applied for by said A. B. due notice of said appeal having been given, 

we did on the day of , A.D. 18—, the time duly fixed therefor, 

proceed and review the action of said commissioners, and did hear all 
such reasons as were offered for and against the laying of said drain, and 
do determine that the action of said commissioners was in all things 
proper. [If the decision of the commissioners is reversed, then say:) and do 
reverse the decision of said commisioners, and do determine that (Here 
state the decision for which the form and suggestions given for the commission- 
ers can he used according to circumstances.) Gr. H., Supervisor. 

I. ., Justice of the Peace. 

Bated this day of - — , A.B. 18—. K. L., Town Clerk. 



DIV. VIII.] COMMON FIELDS. 341 




DIVISION VIII. 

INCLOSURES AND FENCES. 

COMMON FIELDS. 

Section 1. Those who are or shall be proprietors or owners Common fields, 
of land, in any field that is now occupied, used and declared, or mike rules aij 
that shall hereafter be occupied, used or declared to be a common cefning.° nS C ° U " 
field, may meet together, by themselves or agents, annually, on the 
first Monday in March, or such other days as they shall appoint, 
at some convenient place by them appointed, for the purpose of 
making such rules and regulations as to them shall seem meet for 
the well ordering of the affairs of such field, with respect to fencing 
and cultivation, and all other things necessary for the well managing 
the same, for the common interest of such proprietors ; in which 
meeting the proprietors of such field shall have full power by their 
major vote, to be computed by interest, to order all such affairs and 
make such regulations as they shall deem proper and expedient for 
the purpose aforesaid : Provided, always, that any person who is a 
proprietor in any common field, may, at any time hereafter, separate 
his, her or their land, from such common field, by fencing the same, 
subject only to making and keeping in repair fences in like manner 
as persons having inclosures adjoining to the common fields, as by 
this law directed. 

Sec. 2. The better to enable them to carry on and manage the May elect officer*, 
affairs of such field, they are hereby authorized and empowered 
to elect a chairman, clerk and treasurer, who shall be sworn to the 
faithful discharge of their duties, respectively ; and the clerk shall 
enter and record all the acts, votes and resolutions of the said pro- Their duties - 
prietors, relating to the management of the said common fields j 
and shall continue in his offi.ce until another shall be chosen and 
qualified to serve in his room • and that the election of chairman, 
clerk and treasurer, shall be annually or otherwise, as shall be 
determined by the said proprietors or a majority of them, in their 
lawful meetings assembled. 

Sec. 3. For the better management of their common fields, they s^ 11 ?J«> cl l 00 " e 
shall choose a committee of three persons, which shall be styled three. 
" the field committee," who shall be sworn to a faithful discharge 
of their duties ; the said committee may call a meeting of the Their duties, 
proprietors of such field when they shall judge it needful, by giving 
warning to each of them as live in the town or village, verbally, 
15 



342 IXCLOSURES AND FENCES. [dIY. VIII. 



tion 

Bhall erect. 



where such fields lie, and to the agents, if any, of non-resident pro- 
prietors, ten days previous to the time of such meeting, or by 
warning such proprietors in such other manner as they shall, in 
their lawful meetings, agree upon. 
Proprietors may Sec. 4. The proprietors of common fields are hereby authorized 
themseifveVto de- and empowered, at their lawful meetings, to grant and levy taxes 
fray expenses. on themselves, when they shall judge it needful, according to their 
several interests in such fields, for defraying the charges that may 
arise in setting out and designating the proportion of, or altering 
the fence of such fields, in making gates and bridges, or for any 
other public or common charge, relating to such fields; and to 
appoint assessors and collectors for the making, apportioning and 
collecting such taxes ; which collectors shall have the same power 
and authority, in every respect, as the collectors of county taxes ; 
which taxes, when collected, shall be paid into the hands of the 
treasurer, and shall be appropriated by a majority of the proprie- 
tors for the common benefit. 
Committee to S E c. 5. The field committee shall point out and designate the 

point out propor- , , , ,, . , . , r . . , ° .. 

offenceeach place where, and the proportion which each proprietor shall erect 
of such common fence, and every proprietor in such common field 
shall duly erect and maintain his, her or their proportion in such 
common fence, according to the directions of such committee : 
Provided, such committee shall attend all orders and comply with 
all regulations of the major part of the proprietors of such common 
field, for the improvement thereof for the common benefit, under 
the penalties of such fines and forfeitures as shall be lawfully 
annexed to the breach or neglect of such orders or regulations. 
Proprietors to Sec. 6. Any person or persons having his, her or their part or 

paMoiereoch proportion of common fence designated by the said field committee, 
make fence* t0 s ^ nay e liberty, in order to make or repair the same, of passing 
over any person's lot or land whatsoever, whenever it shall be 
necessary for the purpose aforesaid; and when it shall so happen 
that the line of fence ordered as aforesaid, for the inclosing or 
securing any common field, shall run in upon or intersect the 
fence of any person making a particular inclosure adjoining the 
common field, the one-half of the division fence between such par- 
ticular inclosure and the common field as aforesaid, shall be made 
and maintained by the proprietors of such common field, and the 
Daty of each to ther half bv the owner of such particular inclosure; and if anv 

repair his propor- J * . > j 

tion of fence. person or persons, whose land shall adjoin any such common field, 
shall neglect to keep in repair, and maintain his, her, or their part 
of such fence, after being requested thereto by the field committee, 
in writing under their hands for the space of ten days, it shall be 
lawful for the said committee to repair the said fence at the proper 
charges of the delinquent; which expense, after being estimated 
by two reputable freeholders of the town or village wherein such 
fields are situated, may be recovered by action of debt, before any 
court having competent jurisdiction, together with costs. 



DIV. vii [.] fence regulations. 343 

!Sec. 7. If any person or persons, whose lands shall adjoin such Noti <r e t0 be tf v ; 

r i i i ii i ,i -i • • j. ii , en of removal of 

common held, shall lay open the same, without giving two months fences, 
notice thereof in writing, lodged with the clerk of such common 
held, such person or persons shall be liable to pay all damages that 
may accrue to the proprietors, or to any of them, of such common 
fields, to be recovered in any action of damages, before any court 
having competent jurisdiction. 

Sec. 8. All accounts for any services rendered any person acting Accounts forser. 

. . y ,. . oi« 2 vices, now audit- 

under the appointment of, or by the direction or the major part or ed and paid, 
the proprietors of common fields, shall be paid out of the common 
treasury of such proprietors, after being audited by the field com- 
mittee, except the accounts of such field committee, which last 
mentioned accounts shall be audited by a special committee; and 
all orders on the treasurer shall be signed by the chairman, and 
attested by the clrek ; and the collectors shall, for all or any moneys 
paid by them to the treasurer, demand duplicate receipts, one of 
which shall be held by the said collectors, and the other lodged 
with the clerk; the treasurer shall also demand duplicate receipts 
for all moneys paid by him, on orders on the treasury, one of which 
receipts shall be holden by the treasurer, and the other lodged with 
the clerk. 

Sec. 9. The proprietors of common fields shall have power, by Power to o»-der 
their major votes, in lawful meetings assembled, to order all such ne8 ' 
fines and forfeitures, on either, or any of themselves, as to them 
shall seem reasonable, for carrying into effect any of their rules 
and regulations, for the common benefit of the said proprietors : 
Provided, nevertheless, that the penalty does not exceed the sum of exceed^e'doi- 
five dollars, and that the person or persons thinking himself or lars. 
themselves to be unreasonably or oppressedly fined, shall have the 
right to appeal from the judgment of said proprietors to the next 
circuit court holden for said county : Provided, that notice of such Appeal allowed 
appeal shall be given within ten days after the judgment be given 
by the said proprietors. 

Sec. 10. The said common field shall be inclosed with a good Field to be in- 
and sufficient fence, according to law, on or before the first day offence. TS °° 
May in each and every year, or such other day as the said pro- 
prietors may appoint; and no cattle, horses, or other animals, shall ^ a f t i e c °nTothfr 
be suffered to be put into such fields, for the purpose of depastur- animals, 
ing therein, between the first day of May and the fifteenth day of 
November, in each and every year, or on such other day and time 
as the proprietors may agree upon, under the penalty of paying 
such fines as shall be ordered by the said proprietors, in lawful 
meeting assembled. 

FENCE REGULATIONS. 

Sec. 11. For the better ascertaining and regulating of partition Partition fences, 
fences, it is hereby directed, that when any neighbor shall improve andcSge^ome. 
lands adjacent to each other or when any person shall inclose 



344 INCLOSURES AND FENCES. [DIV. VIII. 

Fence viewers to any land adjoining to another's land already fenced, so that any 
view fences. p art Q £ ^ e £ rgt person's fence becomes the partition fence between 
them, in both these cases the charge of such division fence, (so 
far as inclosed on both sides,) shall be equally borne and main- 
tained by both parties; to which, and other ends in this chapter 
mentioned, the county commissioners, yearly, and every year in the 
term next after the month of January, shall nominate, and are 
hereby required to nominate and appoint three honest, able men, 
for each township, who being duly sworn to the faithful discharge 
of the duties of their appointment, shall proceed, at the request 
of any person or persons feeling him or themselves aggrieved, to 
view all such fence and fences, about which any difference may 
happen or arise ; and the aforesaid persons, or any two of them, 
in each township respectively, shall be the sole judges of the 
charge to be borne by the delinquent, or by both or either party, 
and of the sufficiency of all fences, whether partition fences or 
others. (1) 
Fence viewers to Sec. 12. "When they shall judge any fence to be insufficient, 
Rfficienc^c / 1Q " tne y sna ^ g^ ve notice thereof to the owners or possessors, and if 
fence. any one of the owners or possessors, upon the request of the other, 

and due notice given by the said viewers, shall refuse or neglect 
to make or repair the said fence or fences, or to pay the moiety of 
the charges of any fence before made, being the division or com- 
mon fence, within twenty days after notice given, then, upon proof 
thereof before two justices of the peace of the respective county, 
it shall be lawful for the said justices to order the person aggrieved 
Order to make or an d suffering thereby, to make or repair the said fence or fences, 
who shall be reimbursed his costs and charges from the person so 
refusing or neglecting to make or repair the partition fence or fences 
aforesaid, or to order the delinquent to pay the moiety of the charge 
of the fence before made, being a division or common fence, as the 
case may be. (2) 

(1) Concerning partition or diiision fences, sections 11, 12 and 13 of this chap- 
ter have heen modified by the subsequent act of 1857, post, p. 231. So far as the above sec- 
tions are not in conflict with said act, the provisions thereof remain in force. 

The fence viewers are now elected by the electors at town meeting. The assessors and 
commissioners of highways of the town are ience viewers by virtue of office. Township act, 
Art. 4, § 4, ante, p. 97. 

The electors at town meeting are empowered to make rules and regulations for ascertain- 
ing the sufficiency of all fences, and to determine what shall be a lawful fence. Township 
act, Art 4, § 5. f 9th, ante, p. 102. 

The fence viewers, in their proceedings on the request of a person aggrieved, would un- 
doubtedly be confined to the subject of the request. If that related to the repairing of a 
fence, they probably would not have authority to assign to the adjoining occupants their 
respective share of the fence, and direct the rebuilding within a specified time. Sears v. 
Ckarlemont, 6 Allen R., (Mass.,) 437. 

The application or request of the fence viewers may include the whole subject in contro- 
versy ; but before a party can be affected by the acts or decisions of the fence viewers, he 
must have notice. Fairbanks v. Childs, 44 N. H. R., 458. 

A. good and sufficient fence must be — not merely one which will turn ordinary 
stock, but one that will turn stock even though, to some extent, unruly. C. d) A. R. R. Co. 
v. Utley, 39 111. R., 411. 

The common law rule requiring the owner of stock to keep it upon his own land has 
been recognized, in some cases, in this state, as governing inside or division fences. Headen 
v. Rust, 39 111. R., 186. 

(2) Where the electors at totvn meeting determine not to allow animals to run at 
large, the sufficiency of fences other than division fences will no' be called in queston. The 



DIV. VIII.] FENCE REGULATIONS. 



Sec. 13. If the delinquent shall neglect or refuse to pay the J? e rd ° i rt J niake01 
party injured the moiety of the charge of any fence before made, foiced! 
or to reimburse the costs and charges of making or repairing the 
said fence or fences, under the order aforesaid, then the same shall 
be levied upon the delinquent's goods and chattels, under warrant 
from a justice of the peace, by distress and sale thereof, the over- 
plus, if any, to be returned to the said delinquent. 

Sec. 14. But nothing herein contained shall be intended to pre- dosTLndwfth 
vent or debar any person or persons from inclosing his or their wa,ls or other- 
grounds, in any manner they please, with sufficient walls or fences 
of timber, other than those heretofore mentioned, or by dikes, 
hedges and ditches, all such walls and fences to be in height at 
least five feet from the ground ; and all dikes to be at least three Height of wails 
feet in height from the bottom of the ditch, and planted and set orhedge8 ' 
with thorn and other quickset, so that such inclosures shall fully 
answer and secure the several purposes meant to be answered and 
secured by this law : Provided, that such walls or fences of timber, Proviso. 
other than those heretofore mentioned, and. dikes, hedges and 
ditches, shall be subject to all provisions, inspections and restric- 
tions, to which by this chapter, any other inclosure or fence is made 
liable, according to the true intent and meaning hereof. 

Sec. 15. If any horse, mare, gelding, colt, mule or ass, sheep, anSs 8 break e 
lamb, goat, kid, bull, cow, heifer, steer or calf, or any hog, sh oat through a snffi- 
or pig, shall break into any person's inclosure, the fence being good cient tence * 
and sufficient, the owner of such animal or animals shall be liable 
in an action of trespass, to make good all damages to the owner or 
occupier of the inclosure, for the first offence single damages only, 
and ever afterwards double the damages sustained. (1) 

Sec*. 16. The condition of the fence at the time the trespass Condition of 
was committed, may be proven upon trial, and on complaint made p e r oven on trial, 
by the party injured before any justice of the peace of the county manner of pro- 
wherein such trespass shall be made, such justice is hereby author- 
electors hare power to make rules for ascertaining the sufficiency of all fences, and to deter- 
mine what shall be a lawful fence. See ante, p. 102, ft 9th. Where no such rules are made, 
the fence viewers will proceed under the law at the request of any party interested. 

Where a partition fence is out of repair, and the party to whom the burden 
belongs refuses or neglects to repair it, to the injury of another, the latter may apply to the 
fence viewers to have the fence examined; if they find the fence insufficient and needing 
repair, they will notify the delinquent party, and proceedings will be had under section 12 
above. 

The- forms prescribed for proceedings under the act of 1857, post, p. 232, may be 
varied to suit occasions of proceedings under sections 11 and 12 above. 

Where fence viewers find a divisional fence to be insufficient, their notice to the persons 
bound to repair it need not specify the particulars in which it is defective. Fox v. Beebe, 24 
Conn. R , 271. 

In proceedings before the justices under the law concerning inclosures, it is necessary that 
the defendant should have notice of the proceedings. This may be in the form and under 
the rule of ordinary summons. An appeal lies from their decision. Holliday v. Swailet, 1 
Scam. R., 515. 

(1) Under the general law of this state, as construed in Seeley v. Peters, 5 Gilm., 
130, cattle have a right to go at large, and the owner of a field upon which they may go has 
tjo ri^ht to recover damages unless his field was inclosed by a good and sufficient fence. But 
this law, as thus construed, did not impose the duty of fencing as a positive obligation; it 
simplv wiMield the common law right to recover damages in cases where there was not a 
sufficient fence, and this on the ground that the cattle were rightfully at large. The general 
law upon the subject of stock running at large has been so modified by the township organi- 
sation act. that it is no longer ot universal application. Each township, iu counties which 



346 ENCLOSURES AND FENCES. [DIV. VIII. 

ized and required to issue a summons without delay, to three 
respectable householders of the neighborhood, noways related to 
either of the parties, nor interested concerning the trespass, reciting 
the complaint and requiring them 'to view the fence where the 
trespass is complained of, and their testimony in such case shall be 
good evidence touching the efficiency of the fence. 
Damages where Sec. 17. If any person, injured for want of such sufficient fence, 
fauywounde^or sna ^ ^ urt ? wound, kill, lame or destroy, or shall cause to be hurt, 
killed. wounded, killed, lamed or destroyed, by shooting, hunting with 

dogs or otherwise, any of the aforesaid animals, he or she so offend- 
ing, shall satisfy or pay the owner of the same, the damages with 
costs, recoverable as aforesaid : Provided, that if the^party liable to 
damages as aforesaid, in either case, will abide and pay what may 
be deemed reasonable by three neighbors, indifferently chosen to 
assess the same, it shall be a bar against such suit. (1) 
Animals tres- Sec. 18. All animals trespassing, the owners of the same (if 

secured. may be known) shall be notified thereof, and if they shall refuse to secure 
the said animals and prevent their trespassing, the persons on whom 
the trespass was committed, shall be authorized to secure the same, 
supplying the aforesaid animals with provender and water, for 
which they shall receive a compensation from said owner ; Provided, 
That if said animals shall receive any abuse or damage from said 
person, they shall be barred from any compensation for the afore- 
said services. 
Fences erected Sec. 19. When any person or persons may, by mistake, erect 
by mistake on an( j m ake a fence or inclosure on the land of another person, then, 
may be removed, and in that case, when the line or lines are legally run by the 
proper authority, and the fence and inclosures are known to be on 
the land of such other person, the person or persons making such 
fence or fences as aforesaid, through mistake, shall be empowered and 

adopt the township organization law, is expressly authorized to regulate this subject for itself 
Thus, matter, inconsistent with the general law as construed in Seelcy v. Peters, in such 
towns, ceases to be applicable. Westgate v. Can; 43 111., 453. See also III. Central R. R. 
Co. v. Arnold, 47 111. R., 173; Stoner et al. v. Shugart, 45 111. R., 77: Eeaden v. Musi, 39 
111. R , 186. 

The township organization act authorizes every town to prohibit cattle, horses, 
etc., from running at large. See ante, p. 99. And under an ordinance of a town to that 
effect, the entry of cattle upon the land of another is a trespass as at common law. Ames 
et al. v. Carlton, 41 III. R., 261. 

Where townships have adopted rules prohibiting stock from running at large, 
and there are no regulations requiring fences, the owner of cattle will be liable for injuries 
occasioned by their stock going upon unfenced fields. Where the cattle of two several par- 
ties go upon the field of another and injure his crops, a joint action of trespass cannot be 
maintained against them. Each owner is separately liable for the injuries done by his own 
stock. Westgate v Carr, 43 111 R. 454. 

It is not the duty of a land owner to fence against animals ferce. vaturse (wild by nature), 
but the owner of such animals must keep them at his peril, and he is liable for damage done 
by them on another's land whether fenced or not. Cane/ox v. Crenshaw, 24 Miss. R., 3 
(Jones) 199. 

(1) In an action for injtiries to animals it is necessary for the plaintiff to show 
that he is the owner or hRS possession of the property injured. Ohio & Mississippi R. R. 
Co. v Saxton, 27 111. R , 426. 

Where two persons own land adjoining each other, and join fences, each building the fence 
on his own land, and have no partition fence between them, and cattle break through the 
defective fence of one and enter the premises of the other, the latter would have no right to 
take them up, or recover for injuries against the owner of the stock. Stoner et al. v. Shu- 
t/art. Jr.. 45 111. R., 77. See Buckmaster v. Cool, 12 111. R., 76, and McCormicJc v. Tate, 20 
111. R., 334 



DIV. VIII.] DIVISION FENCES. 347 

authorized by tins chapter to enter into the said land of another, 
doiug as little damage as possible, and take away the rails, posts, 
wood and stones of which said fence or fences are made and 
erected, within one year from the time said line or lines may be 
legally run. (1) 

Sec. 20. The owner or owners of any land whereon a fence or Fence not to in 
fences may have been made by mistake, shall not throw down, nor" 1 ^?, 
in any manner disturb the said fence or fences for one year from 
the time such mistake is found out. 

Sec. 21. When either the owner of the rails, or the owner of No ! ;ice to . P artie * 
the land is desirous of having the line or lines run, dividing such 
land, then, in .that case, the person wishing such survey shall give 
the other person notice in writing, ten days before such survey is 
made, of the time and place of making such survey. 

DIVISION FENCES. Laws, 1857, 

p. 10U, Feb. 18. 

Sec. 1. Where two or more persons shall have lands adjoining, Line fences, how 
each of them shall make and maintain a just proportion of the mamta,ned - 
division fence between them, except the owner or owners of either 
of the adjoining lands shall choose to let such land lie open. (2) 

Sec. 2. When any person shall have chosen to let his land lie when land ilea 
open, if he shall afterward inclose the same, or if any owner of wards Inclosed?* 
land adjoining upon the inclosure of another, he shall inclose the 
same upon the inclosure of another, he shall refund to the owner 
of the adjoining lands a just proportion of the value at that time 
of any division fence that shall have been made by such adjoining 

(1) The law giving the right to remove fences made by mistake npon the lands of other 
persons, applies only to natural persons ; it has no relation to a case where a fence is erected 
by mistake upon the lands of the United States or of this State. Blair v. Wwley, 1 Scam. 
K. 179. 

(2) In proceedings in relation to division fences, the provisions of the above 
section must be taken in connection with section 11, ante, p. 227. 

Fence viewers are made the sole judges in controversies concerning division fences, and 
of the sufficiency of such fences, an well as of all other fences, and are to decide by direct 
examination of the premises. Fox v. Beebe, 24 Conn. R., 271. See ante sec. 11, p. 227. 

It is held that any person occupying land, and interested in the making and maintaining 
a division fence, be his estate or interest in the premises what it may, is entitled to avail 
himself of the provisions of the statue in reference to division fences ; the remedy is not limited 
to the ownei of the fee. Bronk v. Becker, 17 Wend., 320. 

It is the intention of the law that only those having inclosed lands adjoining Bhall he 
required to maintain partition fences between their own and the next adjoining inclosures. 
If at the time the fence viewers act in determining that one of the occupants of adjoining 
lands shall erect and maintain or pay for a part of h division fence, the lands of such party 
are uninclosed, their proceedings are without jurisdiction and void. Bechiel v, Neilson et al. t 
19 Wis, R., 49. 

And unless the proceedings are valid the plaintiff cannot recover under the statute for 
building the defendant's part of the fence. Fairbanks v. Child's, 44 N. H. Rep. R., 458. 

The law in relation to partition fences does not apply to ornamental partition fences 
between city and village lots, hut to the ordinary fences of the country, such as are usually 
built on agricultural lands. Brooks v. Allen, 1 Wis. R., 127. 

Where the owners of two adjoining tracts of land join their fences bo as to have but one 
field in common, and no division fences built, it is the business of one to see that the fence 
of the other is sufficient to turn ordinary stock. Stoner et al. v. Shugart,jr, 45 111. R., 77. 
See Seeley v. Peters, 5 Gilm. R., 130. 

It was the rule at common law, that no man is bound to fence his close against an adjoin- 
ing field, but every man is bound to keep his cattle in his own field at his peril. Rust v. 
Low, 6 Mass. R., 91. McCormick v. Tate, 20 111. R., 338. 
, But the statute of Illinois has chanced this rule. 



Low determined. 



eettied. 



348 ENCLOSURES AXD FENCES. [DIV. VIII. 

owner, or lie shall immediately build his proportion of such divi- 
sion fence. 

Value of fence, Sec. 3. The value of such fence and the proportion thereof to be 
paid by such person, and the proportion of the division fence to be 
made and maintained by him, in case of his inclosing his land, 
shall be determined by any two fence viewers of the town, in 
counties where township organization shall have been adopted, and 
in other counties by any two fence viewers of the county. (1) 

Disputes how Sec. 4. If disputes arise between the owners of adjoining lands 

concerning the proportion of fence to be made or maintained by 
either of them, such disputes shall be settled by any two of the 
fence viewers of the town, in counties where township organization 
shall have been adopted, and in other counties by any two fence 
viewers of the county; and in such cases it shall be the duty of 



(1) Adjoining owners should always endeavor, if possible, to mutually agree as to the 
proportion that each shall maintain of the division fence between their adjoiniug lands; 
the agreement should be reduced to writing ; each party takir-g a copy. The following is 
suggested as a convenient form for such agreement : 

Form of Agreement to divide and maintain a division fence between adjoining 

owners. 

This agreement, made this day of , A. D., one thousand 

eight hundred and , between A. B., of the town of , in the 

county of , and the state of Illinois, of the one part, and C. D., of 

the same town, of the other part, witnesseth, that whereas the said A. 
B. has heretofore erected a fence on the division line between his lands 
and the lands of the said C. D., which said fence commences at (describe 
the location of the fence.) And whereas, after the erection of said fence 
the said C. D. inclosed a field on the east side of said division line, so 

that rods of said fence, commencing at the, etc., (describe the location 

of said portion of the fence,) has become and now is a partition fence 
between the fields of the said A. B. and C. D. ; and whereas, the said C. 

D. has paid to the said A. B. dollars, being in full for one-half of the 

value of said — — rods of fence, it is therefore agreed between the parties 

hereto that the rods of fence on the north part of said rods 

shall be well and sufficiently maintained and kept in repair by the said 

A. B., and the remainder of said rods shall be kept in like repair 

by the said C. D. 

In witness whereof, the said parties have hereunto set their hands and 
seals the day and year first above written. 

A. B., [seal.] 
G. B\, [seal.] 

Where a dispute arises as to the proportion of a fence to be maintained by each 
party, it may be settled by fence viewers, even where there has been an agreement on the 
subject Burgtr v. Kortwright, 4 Johns. R., 414. 

The decision of the fence viewers as to the proportion of fence of each party, is not neces- 
sary where there is no dispute between them. Willoughby v. Cotton, 9 Johns. R., 136. 

The fence viewers have authority to determine what portion of a division fence shall be 
paid for or repaired bv an adjoining occupant, but over the payment of the same so ascer- 
tained they have no control. In a suit for money awarded by fence viewers to be due from 
one adjoining proprietor to another for a partition fence voluntarily built by the latter, 
evidence that he was paid for the same by the person who subsequently conveyed the 
adjoining premises to the former, is admissible. Butler v. Barlow, 2 Wis. R., 10. 

It is held that an apprisal bv fence viewers does not prevent a party from proving bj 
other evidence the expense cf building the adjoining owner's portion of a division fence in a 
suit brought to recover the cost of such portion. Perkins v. PerMns, 44 Barb. R., 134. 



DIV. VIII.] DIVISION FENCES. 



the two fence viewers to distinctly mark and define the proportion 
of the fence to be made or maintained by each. 

Sec. 5. When any of the above mentioned matters shall be sub- JJ^t^Tetue 
mitted to fence viewers, each party shall choose one, and if either disputes, 
neglect after eight days' notice to make such choice, the other 
party may select both. (1) 

Sec. 6. Tho two fence viewers so chosen shall examine the prem- Examine prom- 
ises and hear the allegations of the parties. In case of their disa- p ec j Bion t0 be 
greement they shall select another fence viewer to act with them, final, 
and the decision of any two of them shall be final upon the parties 
to such dispute, and upon all parties holding under them. 

Sec. 7. The decision of the fence viewers shall be reduced to fj 3 ^j 1 / 6 ^™' 
writing; shall contain a description of the fence and of the pro- filed. 

(1) Form of Xoiice to adjoining owners, to choose fence viewers to settle dispute. 

To R. R. : 

Sir : — A dispute Laving arisen between you and myself, being the 

adjoining owners of lands in the town of , in the county of , 

and state of Illinois, concerning the proportion of division fence to be 
made, [or maintained) by each of us upon the line of our said lands, 
your land in question being known as (describe the land with reasonable 
certainty.) and mine as (describe the land.) I have chosen J. W., one 
one of the fence viewers of said town, and do hereby give notice to you 
to proceed and choose another of the fence viewers of said town, to the 
end that said dispute between us may be settled and decided by the said 
fence viewers according to law and as shall seem to them just and right, 
and that if you shall neglect to make such choice for eight days after 
receiving this notice, I shall make such choice myself, and proceed to 
have said matter in dispute adjusted by the fence viewers thus chosen by 
me, the same as if one of them had been chosen by you. 

Yours, etc., J. E. 

Dated, etc. 

Form of Submission of Dispute between adjoining oivners to two fence viewers. 

To P. T. and J. G-., two of the fence viewers of the town of , in 

the county of and state of Illinois. 

A dispute having arisen between the undersigned, A. W. and B. L., 
adjoining owners of lands in said town of , concerning the propor- 
tion of division fence to be made (or maintained) by each, on the line of 
their respective lands, the land of the said A. W. being described as fol- 
lows : (describe the land with reasonable certainty,) and that of the said B. 
L. being described as follows : (describe the land) — the said A. W. has 
therefore chosen you the said P. T. and the said B. L. has chosen you 

the said J. (jr., as two fence viewers of said town of , to the end that 

you may proceed to settle and decide said matter of dispute; and the 
undersigned do hereby submit said matter of dispute to you the said 
fence viewers, and request that you will proceed according to law, and 
settle and decide the same as shall seem to you just and right. 

Dated this day of , 18—. 

A. W. 

B. L. 

If but one fence viewer should act by agreement cf the parties, it is apprehended 
that li!.s iction and determination would be good and binding. Kellogg v. Brown, 32 Conn. 
R., 10$. 



350 INCLOSURES AND FENCES. [DIV. VIII. 

portion to be maintained by each, and their decision upon any 
other point in dispute between the parties, submitted to them as 
aforesaid ; and shall be forthwith filed in the office of the town 
clerk, or in the office of the circuit court in counties which shall 
have not adopted township organization. (1) 

(1) Form of Decision offence viewers in relation to dispute between adjoining 

n , . owners. 
County, \ 

Town of / SS - 

Whereas, we, the undersigned, two of the fence viewers of said town 

of having been chosen by R. V. and J. J., adjoining owners of lands 

in said town, for the purpose of settling and deciding a dispute which 

has arisen between them concerning the proportion of division fence to 

be made [or maintained) by each of them, on the line between their said 

lands, the land of the said R. V. being described as follows : {describe the 

land or field,) and the said R. V. and J. J. having on the day of , 

18 — , submitted the said matter in dispute to us, for our settlement and 

decision, we did, on the day of , 18 — , proceed and examine the 

premises, and hear the allegations of the parties. The said fence we 

find to be a rail fence, commonly called a Virginia or worm fence, running 

north and south, in length, one hundred and sixty rods, and being the 

division fence between the lands above described, that the same was 

originally erected jointly by the parties and divided equally between 

them, the said J. J. taking the south half thereof for his portion by 

agreement, and that the said J. J. now neglects and refuses to keep his 

portion of the same in proper repair. We do, therefore, adjudge and 

determine that, {conclude with the determination of the fence viewers according 

to the fact.) 

Given under our hands this day of , A. D., 18 — . ' 

L. P. 

J. R. 

Form of Decision offence viewers, xohere two can not agree, and another is 

selected. 

County, •) 

Town of i SS ' 

A dispute having arisen between A. B. and C. D., two adjoining owners of 

lands in said town of , concerning the proportion of division fence 

to be made {or maintained) by each of them on the line of their said 
lands, the land of the said A B being described as follows : {describe the 
land or field in question,) and the lands of said C. D., being described as 

follows: {describe the land or field,) the said parties did on the day 

of , 18 — , submit the said matter in dispute to the undersigned, W. 

S. and N. W., two of the fence viewers of said town of , for their 

settlement and decision, the said parties having chosen said fence viewers, 

for that purpose, the said fence viewers did, therefore, on the day 

of , 18 — , proceed and examine the premises and hear the allega- 
tions of the parties, {here set forth a description of the fence as contained 
in the foregoing form, as near as the case will admit,) and the said two 
fence viewers, being unable to agree in the premises, did select N. P., 
another fence viewer of said town, to act with them in making such set- 
tlement and decision; and we, the undersigned, being now fully advised 
in the premises, do adjudge and determine that {conclude according to the 
determination of the viewers.) 

Given under our hand this day of , 18 — . 

W. S. 

N. W. 

N. P. 



DIV. VIII.] DIVISION FENCES. 351 

Sec. 8. If any person who is liable to contribute to the erection Persons refusing 
or reparation of a division fence, shall neglect or refuse, for the other party to 
period of four weeks after notice in writing so to do, to make and makfc 
maintain his proportion of such fence, the party injured may make Expense of, how 
or repair the same at the expense of the party so neglecting or recovore 
refusing, to be recovered from him with costs of suit; and the 
party so neglectiug or refusing, after notice in writing, shall be 
liable to the party injured for all damages which shall thereby 
accrue, to be determined by any two fence viewers selected as 
above provided, and the fence viewers shall reduce their appraise- 
ment of damages to writing, and sign the same. (1) 

Sec. 9. If any person who shall have made his proportion of a Partition fence, 
division fence shall be disposed to remove his fence and suffer his ow remov ' 
lands to lie open, after having first given the adjoining owner at 

-4.H assignment by fence vietcers of only a part of a continuous line of partition 
fence is not lor that reason invalid, neither party at the time requesting that the whole line 
be divided. After such assignment, duly made, the obligations of the parties are fixed to 
maintain the fence accordingly and caunot be changed without consent by a subsequent 
view and division by the feribe viewers of the whole continuous line of partition fence. 
Alger v. Pool, 11 Cush. R. (Mass.) 450. 

A decision of fence viewers requiring the occupants of uninclosed land to erect, maintain, 
or pay for part of a division fence is void. The occupants of such lauds are under no obliga- 
tion to erect fences. Btchttl v. JYeilson, 19 Wis., 49. 

(1) It is probably the intention of the law that proceedings to recover of the delinquent 
party shall be had under section 12 of the act of 1845, ante, p. 228. 

Form of Notice to adjoining owner to contribute to erection or reparation of 

division fence. 
To S. R. : 

Sir: — You are hereby notified to repair that portion of the division 

fence on the line between your land and mine, situate in the town of , 

and county of , according to the decision of J. L. and J. H., two of 

the fence viewers of said town, made on the day of , 18 — , and 

filed in the office of the town clerk of said town, on the day of , 

18 — , and that if you shall neglect to repair the same, agreeably to said 
decision, for the period of four weeks from the date of receiving this 
notice, I shall proceed myself and repair said fence at your expense. 

Dated this day of , A. D. 18—. 

Yours, etc., L. N. F. 

Form of Appraisal of damages by fence viewers, accruing to adjoining owner, 
by reason of neglect to make or repair fences. 

County, 1 

Town of , / 

Whereas we, the undersigned, two of the fence viewers of the said town 

of , having been chosen by P. B. and J. S., adjoining owners of 

lands in said town, for the purpose of appraising the damages claimed 
by the said P. B., and accruing to him in consequence of the neglect 
of the said J. S. to repair his proportion of a division fence mentioned 
and described in a certain decision made by {state by whom made, or if 
the fence has been divided by agreement, state that fact and vary the call 

accordingly,) on the day of , 18 — , and reduced to writing and 

filed in the office of the town clerk of said town of . We did, on 

the day of , 18 — , proceed to examine the premises ; and after due 

inquiry and examination by us made, and having heard the allegations 
of the parties, we do determine that the said P. B. has sustained dam- 



352 INCLOSURES AND FENCES. [DIV. VIII. 

least sixty days' previous notice in writing of his intention so to do, 
he may at anytime between the first day of December, in any year, 
and the first day of April following, but at no other time, remove 
the same. (1) 
Damages in case S E c. 10. If any such fence shall be removed without such notice 

of removal with- . , • .1 t 11 ,1 • . , " « » 

out notice. the party removing the same shall pay to the party injured all such 

damages as he may thereby sustain, to be recovered with cost of 

suit. (2) 

Division fence de- Sec. 11. Whenever a division fence shall be injured or destroyed 

paired.' ° W re " by fire, floods or other casualty, the person bound to make and 

ages to his land, crops, fruit trees, and shrubbery (or as the cas£ may 
be,) in consequence of the neglect of the said J. S. to repair his propor- 
tion of the division fence, as aforesaid ; which damages we have ascer- 
tained, and do appraise at dollars. 

Witness our hands this day of , A.D. 18 — . 

P. S. 
R. B. 

As to the extent and nature of damages which will come under the jurisdiction 
of fence viewers to appraise, it was held by the supreme court of New York, under a liko 
provision of law, that fence viewers are authorized only to appraise damages sustained by 
the neglect or refusal of a party to make or maintain his proportion of a division fence, for 
ordinary injuries resulting from defective fences, such as the treading down and destruction 
of grass, corn, wheat, and other crops, the extent of which can be ascertained upon view ir 
by irspection ; and that they have not the right to appraiso damages where the injury sus- 
tained is the death of cattle caused by eating unripe corn, in the fields of a party who has 
neglected to keep his proportion of a division fencj in repair. Clark v. Brown, 18 Wend., 
213. 

The court for the correction of errors, affirmed the judgment of the supreme court, but 
the members being equally divided in opinion, the judgment of affirmance has not been con- 
sidered as settling the case. lb. 

The appraisal of damages, it properly made, would probably be conclusive. Harriman v. 
Fifitid, 36 Vt. R., 341. 

Where a party was ordered to maJce a division fence, but the height was not 
specified, in default of the order the fence was made by the adjoining owner, it was held that 
he might recover for making the fence, although the voters of the town had decided that all 
fences should be four feet and six inches high, and although the fence was not of the height 
required. The question was*, whether the fence was sufficient for the purposes for which it 
was designed. Ketchum v. Stolp, 15 111. R., 342. 

(1) Form of Notice by adjoining owner, of his intention to remove his share 

of division fence. 
To H. B. : 

Sir: — You will take notice that I desire to remove my portion of the 
division fence on the line of our adjoining lands, (describe the location of 
the fence with reasonable certainty,) that my said lands may hereafter lie 
open and that I shall remove the same after the expiration of sixty days 
from the date of your receiving this notice. 

Dated this day of , A.D. 18—. 

Yours etc., J. G. 

A. partition fence, whether existing by agreement, by acquiescence, or under the 
Btatute, cannot be removed until" the parties interested in its remaining are properly notified 
of the intended removal. McCo-mick v. Tate. 20 111. R., 334. 

Where a party removes a partition fence wrongfully, and his stock enters upon another's 
premises, he will be liable. Stoner et al. v. Shugart, Jr., 45 111. R., 77. 

(2) Whf>re a party removes a division fence without having previously given the required 
notice, the party injured thereby is not limited to a suit for the recovery of actual damages 
sustained in consequence of such removal, but may make the fence anew, and recover the 
expense thereof by action. 

If actual damages are sustained, as the loss of a crop for instanc«, caused by the removal 
of the fence, an action for the recovery of such damages, as weir as a suit to »-ecover the ex- 
pense of making the fence, may be sustained. Richardson v. McDongaU^ 11 Wend., 46. 



DIV. VIII.] FENCING RAILROADS. 353 

repair such fence, or any part thereof, shall make or repair the 
same, or his just proportion thereof, within ten days after he shall 
be thereto required by any person interested therein, such requisi- 
tion to be in writing, and signed by the party making the same (1). 

Sec. 12. If such person shall neglect or refuse to make or repair in case of neglect 
his proportion of such fence for the period of ten days after such 
request, the party injured may make or repair the same at the ex- 
pense of the party so refusing or neglecting, to be recovered with 
costs of suit. 

Sec. 13. Fence viewers may examine witnesses on any and all Viewers examine 
questions submitted to them, and either of such fence viewers shall W1 
have power to issue subpoenas for and administer oaths to such 
witnesses. 

Sec. 14. In all counties which shall not have adopted township in what counties 
organization, justices of the peace shall be ex-ojicio fence viewers viewers.* b ° 
of the county. 

Sec. 15. Fence viewers shall be entitled to one dollar and fifty viewers, how 
cents per day each for the time necessarily spent, as above provided, 
to be paid in the first instance by the party requiring the services, 
and all expenses of the view shall be borne equally between the 
parties, except in case of view to appraise damages for neglect or 
refusal to make or maintain a just proportion of a division fence, 
in which case the costs of view shall be paid by the party in de- 
fault, and may be recovered as a part of the damages assessed. 

Sec. 16. Damages accruing to any person or persons under the Damages, how 
provisions of this act may be recovered in an action of assumpsit, 
and justices of the peace shall have jurisdiction in all cases where 
the damages claimed shall not exceed one hundred dollars. 

Sec. 17. So much of said chapter fifty-one of the revised statutes Repeal of prior 
as is inconsistent with the provisions of this act is hereby repealed. law * 

FENCING RAILROADS. 

Sec. 1. Every railroad corporation, whose line of road, or any Laws 1855, Feb. 
part thereof, is open for use, shall, within six months after the ' 
passage of this act, and every railroad company formed or to be fencSui 5*° 
formed, but whose lines are not now open for use, shall, within six months. 

(1) Form of a Notice to person to make or repair fence injured by fire, 
flood, or other casualty. 

To A. B. : 

Sir : — I do hereby request you to repair that portion of the division 

fence on the line between our adjoining lands in the town of , and 

county of , which you are bound to repair, [describe the fence in 

question.) Should you neglect to repair said fence for the period of ten 
days from this date, I shall proceed myself to repair the same at your 
expense. 

Dated this day of , A. D. 18—. 

Yours, etc., N. T. 



354 



INCLOSURES AND FENCES. 



[diy. VIII. 



ficient. 



Except cross- 
ings. 



Cattle guards. 



months after the lines of such railroad, or any part thereof, are 
tobeeuf- opened, erect and thereafter maintain fences on the sides of their 
road, or the part thereof so open for use, suitable and sufficient to 
prevent cattle, horses, sheep and hogs from getting on to such rail- 
road, except at the crossing of public roads and highways, and 
within the limits of towns, cities and villages, with openings, or 
gates, or bars at the farm crossings of such railroad, for the use of 
the proprietors of the lands adjoining such railroads; and shall 
also construct, where the same has not already been done, and here- 
after maintain at all road crossings now existing or hereafter estab- 
lished, cattle guards suitable and sufficient to prevent cattle, horses, 
sheep and hogs from getting on to such railroad, and so long as such 
fences and cattle guards shall not be made after the time hereinbe- 
fore prescribed for making the same shall have elapsed, and where 
such fences and cattle guards are not in good repair, such railroad 
corporation and its agents shall be liable for all damages which shall 
be done by the agents or engines of, and such corporation to, any 
cattle, horses, sheep or hogs thereon ; and when such fences and 
guards shall have been duly made, and shall be kept in good repair, 
such railroad corporation shall not be liable for any such damages, 
unless negligently or willfully done. No railroad corporation shall 
be required to fence the sides of its roads except when such fence 
is necessary to prevent cattle, horses, sheep and hogs from getting 
on to the track of the railroad from the lands adjoining the same, 
nor shall they be required to construct said fences on the sides of 
their railroads where the same runs through unenclosed lands lying 
at a greater distance than five miles from any settlement; nor shall 
the said companies be required to erect and maintain said fences 
through lands where the proprietors of said lands have already 
erected fences or agreed with said companies so to do. (1) 

Sec. 2. But it shall be the duty of every owner of land adjoin- 
ing any railroad, who has received a specific sum as compensation 
for fencing along the line of land taken for the purpose of said 
railroad, and has agreed to build and maintain a lawful fence on 



When fence is 
necessary. 



(1) Hie obligation of a railroad company to fence its line of road does not 
attach until it has been in operation six months, and where the company has not been in 
operation six months, but had constructed a fence, it is under no obligation to keep it in 
repair, the duty not having attached. Toledo, Peoria & Warsaw R. R. Co. v. MiUer,4o Ill.R., 
42. 

Where a railroad company fails to fence its track as required by law, or has erected an 
insufficient fence, or failed to maintain a fence, it is liable for all damages resulting from 
such omissions of duty, and this without any reference to the manner in which its engines 
may have been controlled. St. Louis, Alton & Tarre Haute R. R. Co. v. Under et al., 49 111. 
R., 433 ; same v. Todd, 36 111. R., 409. 

If a railway company neglects to comply with the statutory requirements, and an injury 
to an animal occurs, which is fairly attributable to such neglect, the mere fact that the ani- 
mal is at large, if so at large in violation of no general or local law, will not relieve the 
company of its liability, even though the animal may go upon the track from uninclosed 
lots adjacent to the crossing, and is-not standing, when injured, on the actual intersection of 
the railway and the highway. Toledo, Wabash & Western R. R. Co. v. Furgusson, 42 111. R., 
449. 

The question of the obligation of a railroad company to fence their road at a particular 
place is one of law, not of fact, and should not be left to a jury to decide. Illinois Central 
R. R. Co. v. Whalen, 42 111. R., 396. 

In cases where a railroad company are not bound to fence their road, or where others ar? 
equally bound to fence, they are nevertheless bound to use ordinary care in running their 



DIV. VIII.] FENCING RAILROADS. 355 

the line of said road, to build and maintain such fence; and it shall 
also be the duty of every owner of land adjoining every railroad, 
who has received compensation for building and maintaining a law- 
ful fence on the line of said road, by way of damages in the con- 
demnation of laud taken for the purposes of said road, under the 
laws of this state, to build and maintain such fence, and if said 
owner, his heirs or assigns, shall not build said fence within six 
months after he has been notified to do so by the said railroad cor- 
poration, or shall neglect to maintain said fences if built, said 
corporations shall build and thereafter maintain such fence, and 
may maintain a civil action against the person so neglecting 
to build or maintain said fence, to recover the expense thereof, and 
such railroad corporation shall not be liable to such owner or own- 
ers, their heirs and assigns, for any damages which shall be done 
by the agents or engines, locomotives or cars of any such corpora- 
tion to any cattle, horses, sheep or hogs of said owner or owners, 
their heirs, assigns, or lessees, coming upon said road by reason or 
on account of the failure of such owner or owners, their heirs or 
assigns, to construct or maintain said fences. (1) 

trains to prevent the injuring of stock. They would be liable for injuries in case of gross 
negligence in this regard. Htade.11 v. Rust, 39 111. R., 186 ; St. Louis, Alton d) Terre Haute 
R. R. Co. v. Linder et al., 39 111. R., 433. 

Where an accident is attributable to a defective fence, which it was the duty of the com- 
pany to provide, if the company has failed to erect a suitable fence, negligence is inferred ; 
but'where they have performed this dutv, then negligence must be proved as in ordinary 
cases. Illinois Central R. R. Co. v. Wkalen, 4 111. R , 396. 

The necessity of fencing a railroad at a given point is not obviated by there being an em- 
bankment at that place from twelve to twenty feet in height, it not appearing that the 
embankment was sufficient to prevent stock from getting upon the track. Toled-o, Peoria d\ 
Warsaw R. R. Co. v. Sweeney, 41 111. R., 226. 

The necessity for a fence where the contrary is alleged, in case of injury, is shown by proof 
that the cattle were upon the track. Toledo, Peoria <£ Warsaw R. R. Co. v. Sweeney, 41 III. 
R., 226. 

The fence must be suitable and sufficient, so as to turn stock, even though to some extent 
unruly. C. <£ A. R. R. Co. v. Utley, 38 111. R., 410. 

A railroad company are not required to fence their track upon their depot grounds in a 
town. G. d-. C. U. R. R. Co. v. Griffin, 31 111. R., 303. 

(1) Where cattle are injured upon a railroad at a place where the company are 
required by law to fence the road, and it has been in operation several years without that 
having beeD done, the company are liable for the damages resulting from such neglect of 
duty. Toledo, Peoria <£ Warsaw Railway Co. v. WicJcery, 4 III. R., 76. 

Where two railroad companies are using the same line of road, one company being the 
owner, and the other using the road by its permission, the company owning the track is lia- 
ble for damages done, by reason of an unfenced track, by the trains of the other company, 
the same as if done by its own trains, and the company committing the injury will also be 
liable. Toledo, Peoria <£ Warsaw Railway Co. v. Rumbold, 40 III., 143 ; Illinois Central R. 
R. Co. v. Kanouse, 39 111. R., 272. 

In the absence of proof of negligence, a railroad company is not liable for the killing of 
cattle which had strayed on to its track at a common or public road crossing. Logansport, 
Peoria <£ Burlington R. R. Co. v. Caldwell, 38 III R., 280. 

The owners of stock which has been killed by a railroad train are nit chargeable with 
negligence because the stock was running at largp. C, B. <£• Q. R. R. Co. v. Cauffman, 38 
111., 425. Cattle may lawfully run at large by the settled law of the state. Seely v. Peters 
5 Gilm. R., 130; C, B. d) Q. R. R. Co. v. Cauffman, 38 111. R., 429. 

Kailroad companies, under the act above referred to, are liable fur killing mules and asses, 
these animals being included in the term " cattle and horses." Ohio d) Mississippi R- R. 0. 
v. Brubaker 47 111. R„ 462. 

The measttre of damages where cattle are killed is the value of the cattle; whore 
from the circumstances they are unfit for beef, the company will be liable for their full value. 
loledo, Peoria 06 Warsaw R. R. Co. v. Sweeney 41 111. R., 226. 

Where a fence along a railroad has been sufficient, and from accident or wrong over which 
the company had no control, it becomes insufficient to turn stock, they have a reasonable 
time within which to repair it. Illinois Central R: R. Co. v. Swearinger, 33 111. R., 289. 

A verbal agreement between a property owner through whose field a railroad passed, ths 



356 INCLOSURES AND FENCES. DIV. VIII.] 

^horses on* 3 " ^ EC# ^' ^ an ^ P erson shall ride, lead or drive any horse or other 
railroad. animal upon such road, and within such fences and guards, other 

than at farm or road crossings, without the consent of the corpo- 
ration, or who shall pull down, tear down, or otherwise render 
insufficient to exclude stock, any part of said fencing, he shall be 
liable to a penalty of not less than ten nor more than one hundred 
dollars, to be recovered in action of debt before any court having 
jurisdiction in such cases, in the name of the company or corpo- 
ration owning such road, and for its use, and also shall pay all 
damages which shall be sustained thereby to the party aggrieved. 
Laws 1869, w Sec. 3a. Whenever a railroad corporation is required by law to 
p. o, pr o. f ence j ts t rac j- or railroad, or to maintain or keep in repair any 
Notice to rail-; suc h fence, and shall neglect or refuse to build or repair such fence, 

roads to build or - ' . , ° _ . r , ,. . . ' 

repair fences, as the case may be, the owner or occupant or the land adjoining 
such railroad, or over or through which the said railroad track shall 
or may be laid, may give notice in writing to such corporation, or 
the lessee thereof, or the persons using such railroad, to build within 
sixty days said fence, or repair within thirty days said fence, as the 
case may be, after the service of such notice. Such notice shall 
describe the land on which such fence is required to be built or 
repaired, and reference given to this act in said notice for the infor- 
mation of said railroad agent to whom the notice is given by the 
provisions of this act. Service of such notice may be made by 

Semce of notice, delivering the same to any station agent of said corporation or rail- 
road company. (16) 

Id. Sec. 3b. In case the party so notified shall refuse or neglect to 

of refusal build or repair the fences on the land described in such notice, in 

owner may maLe accordance with the first section of this act, then it shall be lawful 

fence. f or t k e owner or occupant of such land required to be fenced, to 

build or repair the same, as the case may be, and the person so 
building or repairing such fence shall be entitled to the value 
thereof, from such corporation or party actually occupying or using 
such railroad, to be recovered with interest at one per cent. per. 

if the company would erect certain cattle guards they need not fence the sides of their road 
and he would not claim damage for injury done by the road to his stock getting thereon from 
the field, dees not pass to or bind his grantee of the premises. '$t. L., A. & T. H. R. E. Co. 
v, Todd, 36 111. R., 409. 

(16) Form of Notice to Railroad Company to Build or Repair Fence. 
To the Railroad Co. : 

You are hereby notified that I require you to build (or repair) the fence 
along the line of your road on the following described land, of which I 
am the owner (or occupant), to- wit : (describe the premises with reasonable 
certainty), which fence you are obliged to build (or repair) by virtue of 
act entitled "An Act relating to fencing railroads and service of process 
in relation thereto," approved April 5, 1869 ; which fence I require you 
to build within sixty days (or repair within thirty days) after the service 
of this notice. 

Dated and served this day of , 18 — . A. B. 

A copy of this notice should be retained by the person serving it. 



DIV. VIII. FENCING RAILROADS. 357 

month from the time such fence shall have been built or repaired 
(as the case may be), in any proper action, together with costs, fees, 
and disbursements to be taxed. 

Sec. 3c. Such notice must be given on some day between the first Jj™ t0 make 
day of March and the first day of October in any year. 

16 



358 



MUTUAL FIRE INSURANCE COMPANIES. 



[div 



IX. 



DIVISION IX. 
MUTUAL FIRE INSURANCE COMPANIES. 




Mutual fire 
insurance com- 
panies in town- 
ships. 

Twenty-five 
persons may 



Declaration of J 
intention to 
form filed with 
insurance com- 
missioner. 

Requisites of 
charter. 



Sec. 1. That any number of persons, not less than twenty - 
five, residing in any congressional or political township, or in 
one or more adjoining congressional or political townships in 
this State, exceeding three in number and without regard to 
county lines, who collectively shall own property of not less 
than fifty thousand dollars in value, which they desire to have 
insured may form an incorporated company for the purpose 
of mutual insurance against loss or damage by fire, which cor- 
poration shall possess the usual powers and be subject to the 
usual duties of corporations, and the corporate name whereof 
shall embrace the name of the township in which the business 
office of said company is located. 

Sec. 2. Such persons shall file with the insurance commis- 
sioner a declaration of their intention to form a company for 
the purposes expressed in the preceding section, which declara- 
tion shall be signed by all the corporators, and shall comprise 
a copy of the charter proposed to be adopted by them. Said 
charter shall set forth the name and intended duration of the 
company, and, if it is found conformable to this act, and not 
inconsistent with the laws and constitution of this State, the 
commissioner shall thereupon deliver to such persons a certi- 
fied copy of the charter, which, on being filed in the office of 
the clerk of the county court where the office of such com- 
pany is to be located, shall be their authority to organize and 
commence business. Such certified copy of the charter may 
be used in evidence for or against said company, with the 
same effect as the original. (1) 



(1) Form of Declaration of Intention to form Company. 
"We, the undersigned, residing in the political township of [insert 
name of township as known for township organization. If it is merely a 
congressional township and not under township organization, then say Con- 
gressional township, No. , giving the number thereof according to 

description of the U. S Government] in the county of and State 

of Illinois [or of the political, or congressional townships of 

describing them as above, being adjoining townships in the State of 
Illinois, exceeding three in number, or as the case may be], who col- 
lectively own property of not less than fifty thousand dollars in 
value, which we desire to have insured, hereby declare our inten- 
tion to form an incorporated company for the purpose of mutual 
insurance against loss or damage by fire, according to the statute in 
such case made and provided. The following is a copy of the char- 
ter proposed to be adopted by us for the purpose aforesaid. [Here 
insert copy of cl\arter.~\ 



DIV. IX.] MUTUAL FIRE INSURANCE COMPANIES. 359 

Sec. 3. The corporators or directors shall have power to power of 
make such by-laws, not inconsistent with the constitution or makeby-iaws 
laws of this State, as may be deemed necessary for the manage- 
ment of its affairs, in accordance with the provisions of this 
act, also, to prescribe the duties of its officers and fix their 
compensation, and to alter and amend its by-laws when 
necessary. , 

Sec. 4. Any company so organized shall elect, in accord- Nine directors, 
ancc with section three of article eleven of the State constitu- 
tion, nine of their number as directors, five of whom shall con- 
stitute a quorum, to do business, and such directors shall elect Five a quorum, 
of their number a president and a treasurer. They shall also officers, 
elect a secretary, who may or may not be a member of the 
company ; all of whom shall hold their offices for the term of 
one year, and until their successors are elected and qualified. Treasurer and 
The treasurer and secretary shall each give bonds to the com- |!ve e bonds? 

In testimony whereof wc have hereunto subscribed our names this 

■ day of -^-, A. D. 18— 

[Signed by all the Corporators.] 

Hie form, of charter contemplated by this act will be drawn to suit the wishes 
Of the corporators in each case. The lbllo\ving is given as a general form or charter, 
which may be varied to suit circumstances, and which is designated to be inserted 
in the foregoing form of declaration at the place therein indicated. 

Form of Charter for Township Mutual Insurance Company. 
We, E. B., A. T. and H. P., [giving the names of all the corporators'] 

residing in the township of [insert as in the form of declaration of 

intention to organize] in the county of and State of Illinois, do 

propose the following as the charter adopted by us, for the purpose 
of a mutual fire insurance company, pursuant to the statute in such 
case made and provided. 

1. The name of said company shall be The Township Mutual 

Fire Insurance Company, and its business office shall be at in 

said township of , in the county of , and State of Illinois, 

2. The intended duration of said company shall be years. 

3. The object of said company shall be to engage in and carry on 
the business of a Mutual Fire Insurance company within the limits 
of the township [or townships] above named: 

4. Said company shall have and possess all the powers and author- 
ity prescribed by an act of the General Assembly of the State of 
Illinois, entitled " An act to incorporate and govern mutual fire 
insurance companies in townships" approved April 3, 1872. 

In witness whereof we have hereunto set our hands this day 

of , A. D. 18—. 

[Signed by all the Corporators.] 

Note.— In lieu of the foregoing general declaration of the object and powers of 
the company the same maybe set out specifically as the corporators desire, plac- 
ing any restrictions upon the company that may be deemed advisable, within the 
statute. The office or place of business of the "company may be set forth in the 
charter if deemed proper, or it may be left with the company to fix the same, from 
time to time, as circumstances shall dictate. 

In the absence of specifications in the charter, the act itself will be the charter 
of authority or ground for the acts and doings of the company, and for that purpose 
reference can be thereto had. 



360 



MUTUAL FIRE INSURANCE COMPANIES. 



[diy. IX. 



Policies, on 
what property 
issued. 



Persons insured 
to pay pro rata 
share of 
expenses and 



Notice of loss. 



Amount of loss, 
how ascer- 
tained. 



Committee of 
reference. 



Award in 

writing. 



pany for the faithful performance of their duties, in such 
amounts as shall be prescribed by the board of directors. (1) 

Sec. 5. Such company may issue policies only on detached 
dwellings, farm barns, and such property as may properly be 
contained therein, for any time not exceeding five years, and 
not to extend beyond the limited duration of the charter, and 
for an amount not to exceed three thousand dollars on any one 
risk ; all persons so insured shall give their obligations to the 
company, binding themselves, their heirs and assigns to pay 
their pro rata share to the company of the necessary expenses 
and of all losses by fire which may be sustained by any mem- 
ber thereof, during the time for which their respective policies 
are written ; and they shall also, at the time of effecting the 
insurance, pay such percentage in cash, and such other charge 
as may be required by the rules or by-laws of the company. (2) 

Sec. 6. Every member of such company who may sustain 
loss or damage by fire, shall immediately notify the president 
"of such company, or in case of his absence, the secretary there- 
of, who shall forthwith convene the directors of such company, 
whose duty it shall be, when convened, to appoint a committee 
of not less than three members of such company, to ascertain 
the amount of such loss, and in case of the failure of the parties 
to agree upon the amount of such damages, the claimant may 
appeal to the judge of the county court, of the county in which 
the office of such company is located, whose duty it shall be to 
appoint three persons as a committee of reference, who shall 
have full authority to examine witnesses, and to determine all 
matters in dispute, and shall make their award in writing to 
the president of such company, and such award shall be final. 



(1) Form of Bond of Treasurer or Secretary. 
Know all men by these presents, that we, A. T., principal, and E. 

M., and E. B., securities of , are held and firmly bound unto 

the Township Mutual Fire Insurance Company, of the said 

township of , in the county of , and State of Illinois, in the 

penal sum of dollars, forthe payment of which, well and truJy 

to be made, we bind ourselve's, and each of us, and each of our heirs, 
executors and administrators, firmly by these presents. 

Sealed with our seals, and dated this day of , A.D. 18 — . 

The condition of the above obligation is such, that if the above 
bounden A. T., shall faithfully perform the duties of treasurer [or 

secretary] of the said The Township Mutual Fire Insurance 

Company, then the above obligation to be void, otherwise to remain 
in full force and effect. 

A. T., [seal.] 
E. M., [seal.] 
E. B., [seal.] 

(2) TIic obligation contemplated by the above section, is what is commonly 
known as a ■premium note, and may be in the usual form of such instruments. 



DIV. IX.] MUTUAL FIRE INSURANCE COMPANIES. SCI 

The pay of said committee shall be two dollars per day for compensation 
each day's service so rendered, and four cents for each mile BywSompaid. 
necessarily traveled in the discharge of their duties, which 
shall be paid by the claimant, unless the award of said com- 
mittee shall exceed the sum offered by the company in liquida- 
tion of such loss or damage, in which case said expenses shall 
be paid by the company. 

Sec. 7, Any such company may classify the property company may 
insured therein at the time of issuing policies thereon under f£f iIy prop ' 
different rates, corresponding as nearly as may be to the 
greater or less risk from fire and loss, which may attach to 
each several building insured. Whenever the amount of any 
loss shall have been ascertained, which exceeds in amount the 
cash funds of the company, the president shall convene the 
directors of said company, who shall make an assessment upon Assessment on 
all the property to the amount for which each several piece of P ropert >'' 
property is insured, taken in connection with the rate of pre- 
mium under which it may be classified. 

Sec. 8. It shall be the duty of the president, whenever Duty of presi- 
such assessment shall have been made, to immediately notify assessment is 
every person composing such company, personally, by substi- made - 
tute or by letter sent to his usual postoffice address, of the 
amount of such loss, and the sum due from him as his share 
thereof, and of the time when and to whom such payment is 
to be made ; but such time shall not be less than thirty nor 
more than ninety days from the date of such notice. 

Sec. 9. Suits at law may be brought against any member company may 
of such company who shall neglect or refuse to pay any assess- sue members, 
ment made upon him by the provisions of this act ; and the 
directors of any company so formed, who shall willfully refuse 
or neglect to perform the duties imposed upon them by the 
provisions of this act, shall be liable, in their individual capa- 
city, to the person sustaining such loss ; suits at law may also Members may 
be brought and maintained against any such company by sue compan5 ■ 
members thereof for losses sustained, if payment is withheld 
after such losses have become due. 

Sec. 10. No such company shall insure any propertv™, 

1 1 1 T f» 1 !• • 1 • 1 • *» • J " nei " e COm - 

beyond the limits oi the district comprised m the formation pany shall not 
of the company, nor shall they insure any property within msure - 
the limits of any city containing over twelve thousand inhab- 
itants at the time of the organization of such company. 

Sec. 11. The directors shall be elected by ballot, and after Directors eiect- 
the organization of any such company, excepting to fill vacan- |f wLuir^el. 
cies, such elections shall be held at the annual meeting thereof, 
which shall be the first Tuesday after the first Monday of Jan- 



362 ' 



MUTUAL FIRE INSURANCE COMPANIES. 



[DIV. IX. 



Duty of secre- 
tary. 



IIow members 
may withdraw 
from company 



Proviso. 



Further pro- 
viso. 



Non - resident 
members. 



uary in each year, and every person so insured shall be enti- 
tled to one vote, and an additional vote for each five hundred 
dollars that they may be insured in the company. 

Sec. 12. It shall be the duty of the secretary to prepare a 
statement, showing the condition of such company on the 
thirty -first day of December, and present the same at the 
annual meeting. 

Sec. 13 Any member of such company may withdraw 
therefrom by surrendering his policy for cancellation, at any 
time while the company continues the business for which it 
was organized, by giving notice in writing to the secretary 
thereof, and paying his share of all claims then existing 
against said company : Provided, that by the withdrawal of 
any such member, the number of members remaining in the 
company will not be reduced below the original number of 
corporators, or that the assets will not be reduced below the 
amount at the time of organization : Provided, further, that 
the company, from good reasons shown, shall have power to 
cancel or terminate any policy by giving the insured notice to 
that effect. 

Sec. 14. Non-residents of any such township or district 
owning property therein, and being residents of the county 
containing said township or district, may become members of 
such company, and shall be entitled to all the rights and priv- 
ileges appertaining thereto, except that such member shall not 
become directors of said company. 

Sec. 15. It shall be the duty of the president and secre- 
tary of every such company, on the first day of January of 
each year, or within one month thereafter, to prepare, under 
their own oath, and transmit to the insurance commissioner, 
a statement of the condition of the company on the thirty - 
first day of December then next preceding, in such form as 
the commissioner may direct. If upon examination, he is of 
the opinion that such company is doing business correctly, in 
accordance with the provisions of this act, he shall thereupon 
furnish the company his certificate, which shall be deemed 
authority to continue business the ensuing year, subject, how- 
ever, to subsequent provisions of this act. For such exami- 
nation the company shall pay five dollars, and one dollar for 
the certificate ; each company shall pay, at the time of organ- 
ization, ten dollars for the commissioner's services, all of which 
shall be paid into the State treasury and applied to the insur- 
ance fund. 

Sec. 16. If the commissioner, upon the examination of any 
company organized under this act, is of the opinion that its 



Annual state- 
ment to insur- 
ance commis- 
oner. 



Compensation 
of commis- 
sioner. 



DIV. IX.] MUTUAL FIRE INSURANCE COMPANIES. 363 

condition has become such as to render its further proceeding company 
hazardous to the insured, or when a majority of the members cauroar when 
of such company desire to close its concerns, he or thev mav majority of 
apply to the judge of the county court of the county in -which to close, 
the office of the company is located, or to the judge of the 
circuit court of the circuit court thereof, setting forth in sub- couu cdmgs in 
stance the grounds of application ; and such court, after due 
notice to all parties interested, may proceed to hear the matter, 
and for reasonable cause decree a dissolution of the corpora- 
tion. Corporations so dissolved shall be deemed and held 
extinct in all respects as if their charter had expired by their 
own limitation, subject to provisions hereinafter prescribed. 

Sec. 17. Any such company whose charter has expired by company 
limitation, or which has been dissolved by decree of court or ^J: 1 ™^ one 
otherwise, shall nevertheless be continued as a body corporate charter expires, 
for the term of one year after the time when it would have dissolution. 
been so dissolved, for the purpose of prosecuting or defending 
suits by or against it, and of enabling it to gradually settle and 
close its concerns, but not for the purpose of continuing the 
business for which it was organized ; and when the charter 
expires, or the company is dissolved, as provided, the court, on 
application of a creditor, or three members of the company, 
any time within said year, may appoint a receiver to take Rece ? ver , 

v «/ / »/ j. x appointed. 

charge of its effects, and collect the debts and property due 
and belonging to it, with power to prosecute and defend suits 
in the name of the company, or otherwise, and do all other 
acts which mi<2;ht be done by such company. All accounts of Accounts of 

o •/ i %/ receiver 

the receiver shall be rendered to the court as may be ordered ; 
the powers of the receiver may be continued as long as the 
court deems necessary for said purposes, before ordering him 
to make his final report. At the time of final dissolution of Distribution of 

. }*•■ . . . . . _ 1 balance after 

any such company, it a balance is remaining alter the payment paying debts. 
of the debts, it shall be distributed and paid to those who are 
justly entitled thereto, as having been members ; also return 
to them all their obligations held by such company. 

Sec. 18. The term " commissioner," in this act, shall be Definition of 
considered to mean the person who, by law, has charge of the ^onS? ,ls " 
insurance department of the State, whether that be the auditor 
of public accounts, or any other officer. 



364 PAUPERS. 



DIV. X. 



DIVISION X. 

BET. STAT. PAUPERS. 

CHAP. 80, P. 

"'_ _, Section 1. Every poor person who shall be unable to earn a 
wbT^iZred livelin ood in consequence of any bodily infirmity, idiocy, lunacy, 
paupers; what or other unavoidable cause, shall be supported by the father, grand- 
pS^h^theT f atn er, mother, grand-mother, children, grand-children, brothers or 
sisters of such poor person, if they or either of them be of suffi- 
Penaity for neg- cient ability. And every person who shall fail or refuse to sup- 
lect * port his or her father, grand-father, mother, grand-mother, child or 

grand-child, sister or brother, when directed by the county commis- 
sioner's court of the county where such poor person shall be found, 
whether such relative reside in the same county or not, shall forfeit 
and pay to the said county commissioners, for the use of the poor 
of their county, the sum of five dollars for every month for which 
they or either of them shall fail or refuse, to be recovered in the 
name of the county commissioners' court, for the use of the poor 
as aforesaid, before any justice of the peace, or any other court 
Proviso. having jurisdiction : Provided, that when any persons become 

paupers from intemperance or other bad conduct, they shall not 
be entitled to support from any relation, except parent or child. (1) 
Order in which Sec. 2. The children shall first be called on to support their 
£b 1 eT e88hallbe parents, if there be children of sufficient ability, and if there be 
none of sufficient ability, the parents of such poor person shall be 
next called on, and if there be no parents or children, the brothers 
and sisters of such poor person shall next be called on, and if there 
be no brothers or sisters, the grand-children of such poor person 
Proviso. shall next be called on, and then the grand-parents : Provided, 

married females, whilst their husbands live, shall not be liable to a 
suit. 
When pauper has Sec. 3. When any such poor person shall not have any such 
no relatives, how relatives in any county in this state, as are named in the preceding 
sections, or such relative shall not be of sufficient ability, or shall 
fail or refuse to maintain such pauper, then the said pauper shall 

(1) A. pauper, under our statute, is a person destitute of pecuniary means, 
and unable to earn a livelihood in consequence of any bodily i nf i rmi ty, idiocy, lunacy, or 
other unavoidable cause. Williams v. Franklin, 39 IU. E., 22. 

Where a man has been supplied at his own request, as a pauper, for many months, it is 
good evidence, ») far as he is concerned, 1 hat he is a pauper. Hunnewell v. Hobart, 40 Maine 
R.,28. 



DIV. X.] PAUPERS. 365 

receive such relief as his or her case may require, out of the 
county treasury, in the manner hereinafter provided. (1) 

Sec. 4. When any non-resident, or any other person not coming Ja^peTt^Sckor 
■within the definition of a pauper, shall fall sick or die in any die, expenses 
county of this state, not having money or property to pay his board, ow pal ' 
nursing and medical aid, it shall be the duty of the overseers of 
the poor of the proper district, or if there be none, then of the 
nearest county commissioner of the county, upon complaint being 
made, to give or order to be given such assistance to such poor 
person as they may deem just and necessary; and if said sick per- 
son shall die, then the said overseers or county commissioner shall 
give or order to be given to such person, a decent burial : and the 
said overseers or county commissioners shall make such allowance 
for board, nursing, medical aid or burial expenses as they shall 
deem just and equitable; which allowance shall be laid before the 
county commissioners' court, and the said court shall allow either 
the whole, or such reasonable and just part thereof as ought to be 
allowed, and order the same to be paid out of the county treasury. (2) 

Sec. 5. The justices of the peace in each justice's district, in Overseers of th« 
conjunction with such other person as the county commissioners in poor * 
the several counties in this state, may appoint,- shall be, and are 
hereby made, overseers of the poor, and are vested with the entire 
and exclusive superintendence of the poor in their respective dis- 
tricts, excepting in case of corporate towns or cities, to which such 
superintendence and jurisdiction shall be by law granted. (3) 

(1) J7te duty of supporting the paupers resident in the various counties of 

this state, is imposed upon such counties ; aud they are hound by all contracts for the sup- 
port of such persons, when legally eutered into by the proper officer. Supervisors of Clay 
County v. Plant, 42 111. R., 324. 

If the proper public authorities fail to provide a comfortable support of paupers, after no- 
tice of their condition, individuals may do so, and recover of the public therefor. Seagreave.s 
v. City of Alton, 13 111. R , 372. 

Where a city voluntarily supports an insane person, ha-ving means of support, recovery 
cannot be had of the county therefor. City of Alton v. Madison County, 21 111. R., 115. 

(2) Counties are liable for a reasonable compensation, under section 4 of 
the pauper act, to one who renders medical aid to persons falling sick within the county, and 
having no means to pay for the same. The decision of the hoard of supervisors as to what 
is a proper allowance, is not conclusive ; and if a proper amount is not allowed, an action may 
be maintained therefor. In such cases, persons falling sick with a contagious disease are not 
paupers within the moaning of the statute, and in an action to recover for medical aid so 
furnished to them, the liability of the county is not affected by the fact that a "poor house" 
had been provided in the county for the reception of paupers. Such an establishment is not- 
designed to receive persons affected with contagious disease, but only those who are techni. 
call) paupers. Supervisors of La Salle v. Reynolds, 49 111. R., 186. 

(3) The supervisors of towns are now overseers of the poor. See Township Act, Art. 8 ? 
11,. ante, p. 125. ' * 

It has been held to be the duty of overseers of the poor to relieve a person 
found in their town in distress, although be may have property of his own, not available for 
his immediate relief. Norridgewock v. Solon, 49 Maine R., 385. 

It has, in practice, always been supposed that when an overseer of the poor is unable to 
procure any contract for the support of a pauper, and no poor house has been provided, or 
in case of urgency, he may purchase necessary articles for the relief of the pauper, on credit 
of the county, and thus reDder it liable for payment. Supervisors of Clay County v. Plant, 
42 111. R. 325 ; see Clinton v. Benton, 49 Maine R., 550. 

But where contracts for the support of paupers, or for articles furnished, are extravagant 
or improvident, the board of supervisors may no doubt reduce the amount to be paid. ' Su- 
pei-viscrs of Clay County v. Plant, 42 111. R , 324. 

A county would probably not be liable for medical services rendered a pauper, unless or- 
dered by the overseer of the poor, even where it was needed before such order could be ob- 
tained. French v. Benton, 44 New Hampshire R., 28. 

Under the township organization law, it is not necessary that the justices of the 



366 PAUPERS. [div. X. 

Duty of overseers g EC> Q t j t s h a n be the duty of the said justices wfehin their 

of the poor. . , . ., j . -, n .,,.,. , 

respective districts, and the person appointed as aforesaid, diligently 
to inquire after all such persons as are unable to earn a livelihood, 
in consequence of any bodily infirmity, idiocy, lunacy, or other 
unavoidable cause, and to provide for them the necessary comforts 
of life, by confiding the care of such poor person or persons to 
some moral and discreet householder or householders in the dis- 
trict, of sufficient ability to provide for them. Every person to 
whom the care of such poor person shall be committed, shall exe- 
cute a bond to the county in which said poor person shall reside, 
conditioned that he will treat said poor person with humanity, and 
afford to him or her the necessary attention and comforts of life, 
fitted to his or her condition. Said bond shall set forth the sum 
to be given by said county for keeping such poor person or per- 
sons. (1) 
Overseers to g EC . 7. Said overseers shall, at each session of the county eom- 

Sei/doings. missioners' court, make a full report of their actings and doings 
under this chapter, and return a list of all the poor within their 
respective districts, specifying the age, sex and infirmities of each. 
Appropriations Sec. 8. Upon the making of said report, it shall be the duty 
poor! iPPOrt ° f °f tne several county commissioners' courts, to make such appro- 
priations as will justify the person having the custody of any poor 
person, in affording to him or her suitable clothing, and such com- 
forts as may be suitable to their state and coudition. 
Bond of county Sec. 9. Any sum set forth in the bond executed by any county 
may be lessened. as a f ore said, may be lessened or increased at the discretion of said 
county, without affecting, in either case, the validity of the bond. 



peace of the town shall join with the overseer of the poor in ordering goods for the support 
of a pauper; he may act alone. The overseer of the poor alone is authorized to perfurm the 
duties of the offico. Where he has entered into a contract for the support of a pauper, the 
liability of the county is thereby fixed, and its agents have no discretion, but must discharge 
the obligation. Nor can the chairman of the board of supervisors, in such a case, by notice 
or otherwise, abridge the powers of the overseer of the poor. He derives his powers from 
the law, and not from the supervisors. Supervisors of Clay County v. Plant, 42 111. R., 324 

(1) The bond required to be given by the person contracting to support a 
pauper, is designed to indemnify the county agdnst further expense in supporting the pau- 
per, but not lo absolve it from the duty. If the person agreeing to support the pauper fails 
through inability, or otherwise, to do so, the county must still afford the relief, and must 
look to the person with whom they contracted, and his securities, for indemnity for the loss. 
If the overseer fails to take a bond, and the person with whom he has contracted fails to 
support the pauper, he should then, if within his power, contract with some other person ; 
or, failing in that, he should furnish such articles as are adapted to the necessities of the 
pauper, and hire a suitable person, on the best terms he can, to help him. If the overseer 
should act in bad faith, or is guilty of fraud, and the county thereby becomes the loser, he 
would, it seems, be liable for the loss. Supervisors of Clay County v. Plant, 42 111. R.. 32-5. 

A. contract with a county to properly feed and clothe every pauper sect to the con 
tractor upon the order of the proper authorities, for a specified sum, the contractor can re- 
cover no more than that sum from the county for taking care of a lunatic pauper, although 
the trouble and expense was increased by reason of the insanity. The term pauper, under 
the statute, includes lunatic paupers. County of Macoupin v. Edwards, 15 111. R., 198. 

A. person not authorized by latv for that purpose, cannot furnish board to one who 
is on the list of paupers, and an inmate of the poor house, and have a claim therefor upon 
the county, whether he knew the party to be a pauper or not; and the overseers of t :e poor 
have no power to bind the county to the payment of such claim. Board of ConnnissionTt 
of Knox County v. Jones, 7 Ind. R., 3. 

Insane persons are not intended to be included in section 6 of the pauper act. An 
insane person having property adequate to his support, is not a pauper, and the count}' is Dot 
liable for the support of such person, nor is the city in which he resides liable for his support 
City of Alton v. County of Madison, 21 111. R., 115. 



DIV. X.] PAUPERS. 307 

Sec. 10. The county commissioners' court may, at any regular Custody of poor 
term 01 said court, remove any poor person irom the custody of changed. 
the person or persons to whose care the overseers may have com- 
mitted the keeping of such poor persons, without subjecting the 
overseer or the county to any claim for damages. 

Sec. 11. The overseers, in fixing the amount to be paid for Labor of pauper, 
keeping any poor person, shall take into the calculations the ability 
of the poor person to labor. 

Sec. 12. Any person becoming chargeable as a pauper, in this La^s lSGl^p. 
state, shall be chargeable as such pauper in the county in which he l 81 ? d Feb ' "I* 
or she resided at the commencement of six months immediately pauper, how 
preceding such person becoming so chargeable. (1) ascertained. 

Sec. 13. If any person shall become chargeable in any county Non-re«ident 
in which he or she did not reside at the commencement of the six ?ak e p n er C are of 6 
months immediately preceding his or her becoming* so chargeable, a £ d expenses 
he or she shall be duly taken care of, by the proper authority of proper county. 
the county where he or she may be found ; and it shall be the duty 
of the clerk of the county court to send notice, by mail, to the Id - 
clerk of the county court in which such pauper resided, as before 
stated, that said person has become chargeable as a pauper, and 
requesting the authorities of said county to remove the said pauper 
forthwith and pay the expenses accrued in taking care of him or 
her. 

Sec. 14. If said pauper, by reason of sickness or disease, or by Liability of such 
neglect of the authorities of the county to which he or she belongs, P r °P e r county. 

(1) The settlement of a pauper is the place of his birth until he acquires another 
derivatively from his patents or by acts of his own. Toby v. Madiscn,4i Penn. St. R., (8 
Wright) 60. 

After coming of age a minor's removal elsewhere to reside, with no determinate intention 
of departure, will fix his domicile there; and it will not be altered by his afterwards going 
away temporarily with the inteut to return. Hart v. Lindsey, 17 N. II. R., 235. 

A person having a legal settlement in one place, that settlement continues until another i3 
ncquired in the state. A settlement in another state or country will not change that 
acquired in this state, if the pauper returns to it. Where a person moved into a town, pur- 
chased property, resided two years, and then left the state, leaving his family behind him, 
the settlement and residence of the family is there fixed ; and, if they become paupers, they 
are a charge upon such town or county. Payne v. Town of Dunham, 29 111. R., 129. See 
Townsend v. Billerica, 10 Mass. R., 411. 

An illegitimate child retains the settlement which his mother had at hie birth until he 
gains one in his own right, notwithstanding that she subsequently acquires another. Hal- 
lowell v. Augusta, 52 Maine R., 216. 

Persons acting under the legal authority of others, or not capable of acting for themselves 
for the want of mind, do not lose or acquire a residence thereby. Payne v. Town of Dun- 
ham, 29 111. R., 125. Town of Preeport v. Stephenson County, 41 111. R., 501. The residence 
or settlement of such a person is derived from his father or those having paramount control 
over him. Payne v. Town of Dunham, 29 111. R., 128. 

A. residence of is not changed by absence for a tempoi'ary purpose only, 
if the person has sufficient intelligence to form aud retain the intention of leaving 
for a temporary purpose and of returning ; and he does return, in accordance with such 
intention. Corinth v. Bradford, 15 Maine R., 510. The rule that a domicil once acquired 
is presumed to continue until a subsequent change is shown, applies to cases of settlement 
of paupers. CJiicopee v. Whately, 6 Allen R., (Mass.) 508. 

TJie admissions of overseers of the poor in binding out, or their acts in providing 
support for, a pauper, are not admissible in evidence against the town to prove the settlement 
of a person therein. New Bedford v. Taunton, 9 Allen (Mass.), 207 : Dartmouth v. Lakeville, 
Id.. 211. 

JBy the division of a town, or the annexation of a portion of one to another, 
the pauper of the portion annexed does not lose his previous settlement or' residence at the 
place where he had it when he became a public charge. Town of Freeport v. Stephenson Co., 
41 III. R., 495. See cases cited, Oxford v. Bethany, 15 Conn. R., 252 ; vice versa 550 Brewer v. 
Epdington, 42 Me. R., 541 ; Yarmouth v. North Yarmouth, 44 Me. R., 35S ; Southridge v. 
Sharlton, 15 Mass. R., 248. 



368 



PAUPERS. 



[div. X. 



Term residence 
denned. 



Penalty to con- 
vey pauper into 
county be ia not 
resident of. 



Poor-houses to 
be established. 



Land may be 
acquired for 



Donations for 
poor-bousea. 



Taxes for, may 
be levied. 



Agents may be 
employed. 



When poor house 
established, over- 
peer's duty to 
cease. 



Proviso. 



Title to land, in 
county. 



or for any other sufficient cause, can not be moved, then the county 
taking charge of such individual or individuals may sue for and 
recover from the county to which said individual or individuals 
belong, the amount expended for and in behalf of such pauper or 
paupers, and in taking care of the same. 

Sec P5. The term "residence" mentioned in this chapter, 
shall be taken and considered to mean the actual residence of the 
party, or the place where he or she was employed, or in case he or 
she was in no employment, then it shall be considered and held to 
be the place where he or she made it his or her home. 

Sec. 16. If any person shall bring and leave any pauper or 
paupers in any county in this state, wherein such pauper is not 
lawfully settled, knowing him or them to be paupers, he shall for- 
feit and pay the sum of one hundred dollars for every such offence, 
to be sued for and recovered by and to the use of such county, by 
action of debt, before any justice of the peace in the proper 
county. 

Sec. 17. The county commissioners' court in each county, is 
hereby authorized (whenever it shall see fit so to do) to establish a 
poor-house. 

Sec. 18. The county commissioners are hereby authorized to 
take to the county, by grant, devise or purchase, any tract of land, 
not exceeding six hundred and forty acres, for the purpose of said 
poor-house. 

Sec. 19. Said county commissioners' courts are hereby empowered 
to receive donations to aid in the establishment of such poor- 
house, and are also empowered, from time to time, if it shall see 
fit, to levy and collect a tax, not exceeding one-fourth of one per 
cent., on the taxable property of the county, and to appropriate 
the same to the purchase of land, not exceeding the aforesaid six 
hundred and forty acres, and to erect and furnish buildings suitable 
to a poor-house, and to put it into operation, and to defray the 
annual expenses of said poor-house, should the labors of the inmates 
be inadequate thereto. 

Sec. 20. Said county commissioners' courts are hereby author- 
ized to employ such agents and other persons as may be necessary, 
to establish and put into operation such poor-house. 

Sec. 21. Whenever any county commissioners' court shall enter 
upon their records, that they have established a poor house, and 
that such poor house is ready for the reception of the poor of the 
county, then the authority conferred upon the overseers of the 
poor shall cease to be in force in said county : Provided, Jwicever, 
if there be any particular case or cases which the court should 
deem prudent to put out under the provisions of this chapter, they 
may do so, making a proper entry of the circumstances upon their 
records. 

Sec. 22. The title to the property authorized to be acquired by 
this chapter, for the purpose of said poor house, shall be made to 
the county. 



DIV. X.] PAUPERS. 369 

Sec. 23. The county coramissioners , court of any county in this ^° a ° y r ^ 3 u e r . furm 
state may, if they shall at any time deem it to the interest of said chased, 
county, appropriate out of any fund appropriated to said county for 
any purpose, or other money belonging to said county, any sum not ]'££* 1861 ' P # 
exceeding ten thousand dollars, for the purpose of purchasing a 
farm, and erecting thereon suitable buildings for the use of the 
poor of said county, as contemplated in sections seventeen, eighteen 
and nineteen of this chapter. 

ACT OF 1854. 

Section 1. That in all counties that have adopted, or may here- 23, March i. ' 
after adopt, township organization, the overseers of the poor in overseers of poor 
their respective towns may, with the consent of the judge of the «j»y j bind ° ut 

1 A i . t L - j.- .r • 1 -i i children of poor 

county court, bind out apprentices or servants, the minor children persons. 
of any poor person who has become chargeable to their town, as 
having a lawful settlement therein, or who is supported there, in 
whole or in part, at the charge of the county ; and also all minor 
children who are themselves chargeable to the town as having a 
lawful settlement therein, or as poor persons supported by the 
county : Provided, that no minor shall be bound under the pro- Proviso, 
visions of this act unless such minor shall have become chargeable 
as a pauper. (1) 

(1) Form of Indenture binding a poor Child by Overseer of the Poor. 

This indenture, made and entered into on the day of , A. D. 

18 — , by and between F. P., overseer of the poor of the town of , in 

the county of , for the year 18 — , of the first part, and S. B., of said 

town, of the second part, witnesseth : 

Whereas, it hath been made to appear to said overseer of the poor, that 
J. J. is the minor child of poor parents, who have become chargeable to 
said town as having a lawful settlement therein ; (or who are supported, 
etc., stating such a case as comes within the law,) therefore the said 
overseer of the poor, by virtue and conformity to the law, in such case 
made and provided, hath bound the said J. J., who is now of the age of 
— years, to the said S. B., as an apprentice to learn the art or trade of a 

, and as such apprentice, to dwell with and serve the said S. B., from 

the date hereof, until the said J. J. shall have attained the age of twenty- 
one years, which will be on the day of , 18 — . And it is hereby 

agreed and understood that the said J. J. shall well and faithfully serve 
the said S. B. during the said term, and shall obey all his lawful and 
reasonable commands ; that he will not willingly do or suffer to be done, 
any harm or damage to the goods, property or interest of the said mas- 
ter ; that he will not, without leave, absent himself from the service of 
his said master, but that he shall, in all things, during the said term, de- 
mean and behave himself as a good and faithful apprentice to his said 
master. And the said S.B. doth, on his part, hereby covenant and agree, 
in consideration of the undertaking and binding aforesaid, to teach and 

instruct the said J. J. in the said trade of a , or otherwise cause him 

to be well and sufficiently taught and instructed in said trade ; that he 
will furnish and provide, or cause to be found, furnished and provided, 
unto the said J. J., meat, drink, lodging, and suitable and proper clothing 
in sickness and in health, and medicine, medical attendance, and nursing 
in sickness, during the said term. And the said S. B. further covenants 



370 



PAUPERS. 



[DIV. X. 



Term of service. 



Indentures de- 
posited with 
town clerk. 



Moneys or other 
property secured 
to minors. 



Overseers to in- 
quire into treat- 



Misconduct or 
neglect of mas- 
ter. 



Trial of parties. 
Judgment to be 
rendered. 



Sec. 2. Such children, whether over or under the age of four- 
teen years, may be bound — females to the age of eighteen years, 
and males to the age of twenty-one years — and provision shall be 
made in the contract for teaching such children to read, write, and 
the ground rules of arithmetic, and for such other instruction, 
benefit and allowance, either within or at the end of their term of 
apprenticeship, as the overseer may think reasonable. 

Sec. 3. No minor shall be so bound by the overseer of the poor 
unless by indentures of apprenticeship, executed in duplicate, by 
the overseer of the poor and by the master, one copy to be retained 
by the master, and one copy shall be, by the overseer of the poor, 
deposited with the town clerk, to be kept by said town clerk for 
the use of the minor. 

Sec. 4. All considerations of money, or other things paid or 
allowed by the master, upon any contract of service or apprentice- 
ship, made in pursuance of this act, shall be paid or secured to the 
sole use of the minor hereby bound. 

Sec. 5. The overseers of the poor shall inquire into the treat- 
ment of all children bound by them, and of all who shall have 
been bound by their predecessors in office, and defend them from 
all cruelty, neglect and breach of contract on the part of their 
masters. 

Sec. 6. In case of any misconduct or neglect of the master, a 
complaint may be filed by the overseer of the poor, (or in case of 
absence of such overseer of the poor,) the supervisor of the town 
in which such minor was bound by the judge of the county court, 
setting forth the facts and circumstances of the case ; and the said 
court, after having duly notified the master of such complaint, by 
giving said master at least ten days' notice of the time and place, 
that he will proceed to hear and determine the cause. 

Sec. 7. After a free hearing of the parties, or of the complaint 
alone, if the master shall neglect to appear, the court may render 
a judgment or decree, that the minor be discharged from his 
apprenticeship or service, and for the costs of the suit against the 
master, and may issue execution for the same. 



and agrees that he will teach, or cause to be taught, the said J. J. to read 
and write, and the ground rules of arithmetic ; and at the expiration of 

said term, will pay to him, the said J. J., the sum of dollars, a new 

bible, and two complete suits of new wearing apparel suitable to his con- 
dition in life, (or such other instruction, benefit or allowance as may be 
agreed upon.) 

In witness whereof, the said parties have hereto set their hands and 
seals on the day and year first above written. 

F. P., [seal.] 
Overseer of the Poor of the town of 

S. B. [seal.] 

The binding out of a minor to servico by the overseer of the poor, does not eman- 
cipate such minor from the control of his father so as to give him a settlement other than 
that of his father. Oldtoxvn v. Falmouth, 40 Maine R., 106. 



D1V. X.] PAUPERS. 871 

Sec. 8. If the c omplaint shall not be maintained, and it shall where complaint 
, - n • n i • 1 i ii« 18 not mam- 

appear to the satisfaction ot the said court that the complaint was tuined.judgment 

made without any just or reasonable cause, the court shall render t0 be rendered - 

judgment for the costs against the complainant. 

ACT OF 1855. 

Sec. 1. The board of supervisors of the several counties in Laws is">5, 
this state, which have adopted town organizations, be and they are J* !?_._ 

i>i i i ii -it n l Board of super- . 

hereby authorized and empowered to sell and dispose of the poor visors may did- 
farms of their respective counties, at such time and on such terms f d r 8 ms ° f poor 
as they may think proper, and upon said sale being made, and said 
premises being paid for according to the terms and conditions of 
said sale, it shall be the duty of the chairman of the board of £jwutei° W 
supervisors to make, execute and deliver to the purchaser or pur- 
chasers of said farm, a good and sufficient deed therefor, in behalf 
of said county, which deed shall convey the interest of said county 
in and to said farm, to the said purchaser or purchasers thereof. 

Sec. 2. All sales of the poor farms belonging to the said counties Former sales 
of this state, heretofore made by the board of supervisors, are legahzed " 
hereby confirmed, and it shall be the duty of the chairman of said 
board to convey said property by deed, as is provided for in the 
first section of this act. 

Sec. 3. In all cases where any real estate has heretofore been sold JJJ^ 8 ^ w fo ™; r 
by the board of supervisors of any county in this state, acting cuted. 
under township organization, or by the county commissioners of 
any such counties acting previous to the adoption of the township 
organization law, it shall be the duty of the chairman of the board 
of supervisors in any county where such sale or sales has been 
made as aforesaid, to convey the same by deed, in behalf of said 
county for which he may be acting, to the purchaser or purchasers 
of said real estate, which said deed shall convey the interest of 
said county in and to said real estate, to the purchaser or purchasers 
thereof. 

ACT OF 1869. 

Sec. 1. That whenever any creditable person shall make com- Jy^JJJJj 5^ 
plaint in writing that any person who, by the provision of the 
eightieth chapter of the revised statutes, entitled " Paupers," is 
liable for the support of any insane or idiot pauper, neglects or 
fails to support properly such insane or idiot pauper, and shall pre- Complaint to 
sent such complaint to the supervisor of the town of which said justice, 
pauper is a resident, or any justice of the peace in the justice's 
district in which such pauper may reside, in counties not .having 
township organization, it shall be the duty of such supervisor forth- 
with to commence an action in the county court of his county, upon ^JJ," !<:«£ 
such complaint, in his name, as supervisor or justice of the peace, 
against such person as defendant so liable for the support of such 
insane or idiot pauper, and thereupon a summons shall issue out of ummons - 



372 PAUPERS, [div. 



said court requiring such defendant to appear and answer such 
complaint, which summons shall be served on said defendant at 
least ten days before the return day thereof. 
Proceeding in Sec. 2. The court before which such complaint is made shall, on 

the return day of such summons, proceed in a summary way to 
hear the proofs and allegations of the parties, and if the court is 
satisfied from such proofs and allegations that the defendant is 
properly supporting such insane or idiot poor person, taking into 
consideration the ability of the defendant, and . the situation of 
such insane or idiot pauper, the defendant shall be discharged at 
the costs of the complaining witness. 
Court to make Sec. 3. If the court, upon hearing such cause, is satisfied by the 
of d pauper. US 7 proofs and allegations that the person complained of is not sup- 
porting such person in a manner suitable to the situation of such 
poor person, taking into account the ability of such defendant, 
then the court shall make an order authorizing and directing such 
supervisor or justice of the peace to take the custody and control 
of such poor person, and shall further order and direct said 
defendant to pay such sum of money weekly to such supervisor or 
justice of the peace as, in the opinion of said court, is necessary 
to support properly such insane or idiot poor person, in a manner 
suitable to the condition of such insane or idiot poor person, 
taking into view the ability of the defendant to furnish such sup- 
port, and shall also order said defendant to pay the costs of the 
trial, and such order of the court shall be a lien on all the real 
estate of such defendant in the county, and upon a failure of said 
defendant to pay any weekly installment required by such order, 
then execution shall issue for the collection of all such sums as 
may be in arrear and unpaid at the time of issuing such execution, 
which execution shall be collected in the same manner as other 
executions issuing out of said court. 
Supervisor or Sec. 4. The successor of any such supervisor or justice of the 

control of pan- P eace shall have the custody and control of such insane or idiot 
per. pauper, and shall receive from such defendant such weekly install- 

ments for the support of such insane or idiot pauper ; and in case 
such defendant shall refuse to pay the same, he may enforce collec- 
tion by causing execution to be issued on such order, and all sums 
paid by such defendant by virtue of said order shall be applied to 
the support of such pauper. 



DIY. X.} PAUPERS. 373 

AMENDATORY ACT CONCERNING PAUPERS. 

Section 1. That section four of chapter eighty, of the i.»w» 1872. 
Revised Statutes of A.D. 1845, be amended so as to read asVfar. uitsSt" 
follows :(1) v v — J 

"When any non-resident, or any other person not coming §J ^ statutes 80, 
within the definition of a pauper, shall fall sick or die in any amended, 
county of this State, not having money or property to pay his Non-residents 
board, nursing and medical aid, it shall be the duty of thecomln^^thhi 

deflniti 
paupers. 



overseer of the poor of the proper district, or if there be none, def 
then of the nearest county commissioner of the county, upon 
complaint being made, to give, or order to be given, such assist- How provided 
ance to such poor person as they may deem just and necessary, sfckneS or° f 
and if such sick person shall die, then the said overseer r dealh - 
county commissioner, shall give, or order to be given, to such 
person, a decent burial, and the said overseers or county com- 
missioners shall make such allowance for board, nursing, medi- 
cal aid, or burial expenses, as they shall deem equitable, which Anowancc for 
allowance shall be laid before the county board, and the said board < etc - 
court shall allow either the whole, or such reasonable and just 
part thereof as ought to be allowed, and order the same to be 
paid out of the county treasury." That all persons coming £ount°Mxeasury 
within the provisions of this section, who are killed or injured-. . 

, mi • r» • Such persons 

by any railroad company or corporation, manuiacturmg or killed or 

• • - ,. i v -L j. -J ¥• injured by 

mining establishment, company, association or corporation, railroad 
whether such person be the employee of such railroad company S be a car?d e for 
or corporation, or manufacturing or mining establishment, or buried by 

• x i.« i. -ix. x -j. -..'company. 

company, association or corporation, or not, either by its, his 
or their agents, employees or servants in the prosecution of the 
business of their employer, or by any engine, car, collision or 
explosion, or otherwise, by such railroad company, or by any 
machinery or explosion in any such manufacturing establish- 
ment or mines, or by the caving in, or damps in such mines, 
shall be properly cared and suitably provided for, and, in 
case of death, decently buried by said railroad company or 
corporation, manufacturing or mining establishment, company, 
association or corporation. 

Sec. 2. In case of the neglect or refusal of any such rail- Neglect or 
road company or corporation, manufacturing or mining estab-p^nyiofunSh 
lishment, company, association or corporation, to furnish such aid > etc - 
proper aid, assistance and burial, it shall and may be lawful 
for the proper county or township authorities or any other 
person or persons, to so furnish aid, assistance and burial ; 

(1) See ante, p. 364. 



PAUPERS. [DIV. X. 



and the authorities or other person so furnishing aid, assist- 
ance or burial, or in any way contributing thereto, may have 

Eight of action, a "right of action" against such railroad company or corpo- 
ration, manufacturing or mining establishment, company, asso- 
ciation or corporation, for the amount so expended by it, him, 
her or them, before any court having jurisdiction thereof: 

Proviso. Provided, that in case of any suit brought by any such 

person (or, in case of their death, by their representatives) 
against such railroad company or corporation, manufacturing 
or mining establishment, company, association or corporation, 
for such injury or death, it may .be lawful to give such 
expenditures and outlay in evidence in mitigation of dam- 
ages. 

Act to apply to Sec. 3. The provisions and liabilities of this act, shall also 

^eamboats, etc. a ppj^ ex t en d anc [ attach to all steamboats, propellers, boats, 
vessels or stages, which are engaged in whole or in part in the 
conveyance of passengers for hire. 



DIV. XI.] IDIOTS AND LUNATICS. 375 



DIVISION XI. 
IDIOTS AND LUNATICS. 

364, APRIL 19. 

Section 1. Whenever any idiot, lunatic, insane or distracted ^— -y - — ^ 
person, or any person whose mind shall be impaired by the habitual conservator P ° int 
use of intoxicating liquors, has any estate, real or personal, and is 
unfit, from any or other [either] of the foregoing causes, to properly 
manage or control the same, the judge of the circuit or county 
court in which such person so unfit to manage or control his prop- 
erty shall live, on the application of any creditor or relation, or, 
if there be neither creditor nor relation, then any person living 
in such county, [may] order a jury to be summoned to ascertain 
whether such person be lunatic, insane or distracted, or an habitual 
drunkard and unfit to manage or control his property ; and if the 
jury aforesaid shall return in their verdict that such person is luna- 
tic, insane, distracted, or that the mind of such person is so im- 
paired by the use of intoxicating liquors or from any, either or all 
of said causes, as to be unfit to manage or control his said property, 
it shall be the duty of the judge aforesaid to appoint some fit person 
to be the conservator of such person so declared unfit to manage or 
control his property as aforesaid. (1) 

(1) Every man is presumed to be sane until the contrary is shown. Fishery. Th9 
People, 23 111. R., 283; ommonwealth v. Heath, 11 Gray R., (Mass.) 303. And it is never 
incumbent on the prosecution to give affirmative proofs of its existence in a particular case. 
Walter v. People, 32 N. Y. R., 147. 

After inquest, and a verdict of insanity, tlie presumption is changed, and 
proof is required to show sanity. Lilly v. Waggoner, 27 111. R., 395. 

The verdict of a jury in a county court that a person charged with insanity, was sane on a 
particular day, is not prima facie evidence that the sane party was sane at a subsequent or 
prior date. Emery v. Hoyt, 46 111. R., 258. 

An irritable temper and an excitable disposition are not of themselves evidence of insanity. 
Willis v. People, 32 N. Y. R., 715. 

That a person makes improvident bargains, and is generally unthrifty in his business, or 
nnsuccessful in his enterprises, does not of itself prove him to be non compos mentis, though 
it may tend to show that fact. In re Carmichael, 36 Ala. R., 514: Hovey v. Chase, 52 Maine 
R., 304. 

The term non compos mentis, does not, necessarily, denote a total deprivation or destruction 
of the intellectual powers; and il does not denote mere mental weakness, but unsoundness, 
or a diseased or unhealthy state of the mind. In re Carmichael, 36 Ala. 514. 

The affirmative testimony of insanity, in a proceeding involving that question, should out- 
weigh that which is merely negative. Emery v. Hoyt, 46 111. R., 658. 

An inquisition of lunacy is not conclusive against a person dealing with the sup- 
posed lunatic, and he may show that at the time of the contract, the supposed lunatic had 
capacity to make it. Parker v. Davis, 8 Jones' L. R., (N. C.) 460. 

When insanity is established to have existed, it will be presumed that it contin- 
ues until the presumption is overthrown by proof, which must be made by the party who 
alleges a restoration to reason, ilerkins v. Lightner, 18 111. R., 282. 

It cannot be presumed, against proof, that a person was insane merely because his mother 
had been so. Snow v. Benton, 28 111. R., 306. 

In a proceeding, under the statute, to procure the appointment of a conservator to 



376 



IDIOTS AND LUNATICS. 



[DIV. XI. 



?■ give bond. 



Summons, bow 
returned. 



To have entire 
care of effects. 



Compensation. 



Wben personal 
estate may be 
sold. 



Sec. 2. The conservator of such estate so appointed shall enter 
into bond with sufficient security, to be approved by the judge of 
the court in which such proceedings shall be had, to the treasurer 
of the county in which such person so declared unfit to manage his 
property resides, in double the amount of the personal property 
and the rents to be derived from real estate ; and when orders are 
made for the sale of real estate by any court, under the provisions 
of this act or the act to which this is an amendment, additional 
bonds may be required, conditioned for the faithful application of 
the proceeds derived from such sales, according to law. 

Sec. 3. It shall be the duty of the clerk of any court, on the 
application of any person, under the first section of this act, for 
the appointment of a conservator for any person alleged to be insane, 
lunatic, distracted, or unfit from any cause to manage or control his 
property as aforesaid, to issue a summons for such person so alleged 
to be insane, lunatic, distracted or an habitual drunkard as afore- 
said, commanding such person to be and appear before said court 
on the first day of the next regular term thereof, to show cause why 
a conservator should not be appointed to manage and control the 
property of such person j which summons shall be served and 
returned as summons in chancery are required to be served ; and no 
proceedings shall be had unless said summons shall have been served 
at least ten days before the return day thereof. 

Sec. 4. Such conservator shall have the entire care of the estate, 
both real and personal, of such insane, lunatic, distracted person or 
habitual drunkard, and shall forthwith make a true and perfect 
inventory of said estate and return the same into the office of the 
clerk of the county court of said county, where it shall be kept on 
file, and shall render a full and perfect account of his management 
of such trust at least once in each year, to the county court of said 
county, for its approval ; and the clerk of said county court shall 
enter his account and keep the same in the books of said office, in the 
same manner as the accounts of guardians are now or may hereafter 
be required to be kept by law. And such conservator may be allowed 
such compensation as shall seem just and reasonable to the judge 
of said court, not exceeding the fees allowed by law to executors or 
administrators for similar services ; and said circuit or county court 
shall have power to remove such conservator for neglect of duty or 
mismanagement of his trust, and appoint another in his place. 

Sec. 5. It shall be the duty of the said conservator to apply the 
annual income and the profits thereof to the support of such idiot, 
lunatic, insane or distracted person, or habitual drunkard, his or 
her family. He shall have power to collect all debts due to such 



a lunatic, the lunatic must have reasonable notice, or the inquisition will be set aside. Eddy 
v. The People, 15 111. R-, 386. 

In criminal proceedings, a reasonable doubt of the sanity of the accused, musl 
acquit him. Hopps v. People, 31 111. R., 393. 

The modern decisions have qualified the old doctrine, that a man shall not be heard to 
allege his own lunacy or intoxication, and these are now held to be a defence to acts done 
under their prevalence. Morris v. Clay, 8 Jones L. R., (N. C.) 216. 



DIV. XL] IDIOTS AND LUNATICS. 377 

person, and to institute suits for that purpose, and to adjust and 
settle all accounts [due] from him or her ; he may sell or dispose of 
the personal estate to pay his or her debts, or to support him or 
her, or his or her family, and to educate the children of the same. 

Sec. 6. The said conservator may sue and be sued as the repre- now execution 
sentative of the person for whom he is appointed conservator as ma y issue, 
aforesaid ; and execution may issue in the name of and against the 
said conservator, as representative as aforesaid ; and all the property 
of such person may be sold to pay his or her just debts that might 
or could be sold in other cases. 

Sec. 7. Overseers of the poor in every county shall take charge overseers to 
of the body -of any person so insane, lunatic or distracted, and shall ^ ave charge of 
have power to confine him or her, and shall comfortably support 
such person and make an account thereof, and return the same to 
the county court, whose duty it shall be to make an order requiring 
the treasurer of said county to pay the same out of any money in 
the treasury of said county not otherwise appropriated. (1) 

Sec. 8. All contracts, agreements or credits with idiots, lunatics, what contracts 
insane or distracted persons, or habitual drunkard[s], after the t0 be V0ld * 
finding of the jury aforesaid that such person is unfit to manage 
or control his or her property, either by note, bond, bill or other- 
wise, shall be void as against such idiot, lunatic, insane or distracted 
person, or person declared unfit to manage or control his or her 
property as aforesaid ; but persons making such contracts or agree- 
ments with such persons as aforesaid shall be bound thereby. (2) 

(1) An insane person, having property adequate to his support, is not a pauper' 
and the county is not liablo therefor. City of Alton v. County of Madison, 21 111. R., 115. 

A person may sue an adult lunatic for necessaries furnished him, and is entitled 
to proceed in the c:ise npon the appointment of an attorney for the defendant, although there 
is no guardian ad litem. Ex parte Korthington, 37 Ala. R., 496. 

(2) In ordinary cases, where a contract is sought to be avoided on the ground 
of insanity, the only inquiry is whether the party wat» sane when the contract was made. 
Where a party is insane, except at intervals, the rule is, when insanity is alleged as a defence 
to a contract made by him, he who claims the performance of the contract, must prove it was 
entered into while the party had a lucid interval. Emery v. LToyt, 46 111. R., 258. 

The evidence showing the insanity of a party at the time of the execution of a deed, must 
preponderate, or the legal presumption in favor of insanity will sustain the act. Lilly v. 
Wagoner, 27 111. R., 395. 

Where the fact of lunacy or drnnlcenness is established by other means 
than a legal inquisition, it U always competent for the party alleging the contract, to prove 
a lucid interval. Tozer v. Sa'urlee, 3 Grant. R., (Penn.) 162. 

TJie lata fixes no particalar standard of intelligence necessary to be possessed 
by parties making contract-*. Legal competency in a party to a contract, is the possession 
of mental capacity sufficient to transact business with intelligence, and an intelligent under- 
standing of what he is doing. Hovey v. Chase, 52 Maine R:, 304. 

Mere mental weakness will not incapacitate a party from contracting. There 
must be such a state of insanity as actually to disqualify him from transacting his business 
and managing his property. He must, it seems, be capable of understanding the act which 
he performs. Dennett v. DenneJt, 44 N T . H. R., 537. 

An adult person of unsound mind can become liable by implied contract, for 
necessaries suitable to his estate and condition in life; and a suit must, in the nature of 
things, be brought against him personally, where no guardian has been appointed for him, 
and appearance should be by attorney appointed by the court. Ex parte Korthington, 1 Ala. 
R.. 400. 

A lunatic cannot sue in his own name without at least having some one join with him to 
be responsible for costs. Pel/iam v. Moore, 21 Texas R., 755. 

An inquisition of lunacy or drunkenness, is only persuasive evidence of incom- 
petency as to contracts made before the inquest, but during the time the incompetency is 
found to have existed. As to contracts made after an inquisition of lunacy or Irunkenness, 
the statute contemplates a complete transfer of the property to the custody of the law, and 



378 



IDIOTS AND LUNATICS. 



[DIV. XI. 



When trading 
deemod swind- 
ling. 



How conserva- 
tor may be re- 
moved. 



Trial of restora- 
tion of reason. 



Repeal. 



Sec. 9. If any person or persons shall, by trading with, barter- 
ing gaming or any other device, possess himself, herself or them- 
selves of any property or valuable thing belonging to any idiot, 
lunatic or notoriously distracted person, he, she or they shall be 
deemed guilty of swindling, and, upon conviction thereof, shall be 
liable to all the penalties as in other cases of swindling; and any 
person may appear and prosecute with effect. 

Sec. 10. [YVhen] any person for whom a conservator has or may 
hereafter be appointed, under the provisions of this act or the act 
to which this is an amendment, shall be restored to his or her 
reason, or may become competent to manage his or her property, 
on account of a reformation in his or her habits as to sobriety, then 
such person may apply to the circuit or county court of the county 
where said conservator resides, to have said conservator removed, 
and the care, custody or control of his or her property, or so much 
as may remain, restored to him or her, and the disabilities provided 
for in this act removed, by giving notice to said conservator in writ- 
ing, ten days before the commencement of the term of the court to 
which such intended application is made. 

Sec. 11. It shall be the duty of the court to which any such 
application, as provided in the foregoing section, is made, on proof 
that said conservator has been duly notified of such application, to 
cause a jury to be summoned to try the question whether said 
applicant is a fit person to have the care, custody and control of his 
or her property, and if the said jury return in their verdict that 
such person is a fit person to have the control of such property as 
aforesaid, then the court shall enter an order fully restoring such 
person to all the rights and privileges enjoyed before said conserva- 
tor was appointed : Provided, that such conservator, so removed, 
shall be allowed a reasonable time to settle his accounts as such, 
and to pass over the money or property in his hands, and such 
removal shall not invalidate any contracts made in good faith by 
said conservator, while acting as such : Provided, further, that no 
application shall be entertained for the removal of any conservator 
appointed for any person under the provisions of this act, within 
less than one year from such appointment, unless for neglect of 
duty or mismanagement of his trust. 

Sec. 12. All acts and parts of acts in conflict with the provisions 
of this act are hereby repealed. 



SALE OF REAL ESTATE. 

Laws 1853, p. Sec 1. That whenever it shall become necessary to sell the real 
2io, eb. l.., es t a t e f idiots, lunatics or distracted persons, for the purpose of 

x roc66diD£rs to 

sell real estate of paying debts, supporting a family or educating children, or when it 
idiot or lunatic, g^jj g e ^ eeme( j proper to make such sale for the purpose of invest- 



the conservator is substituted for the lunatic or drunkard, and a lucid interval can avail 
nothing; for he has nothing in respect to which to contract. Tozer v. Saturlee, 3 Grant R, 
(Penn.) 162. 



DIV. XI.] IDIOTS AND LUNATICS. 379 



ing the proceeds in real estate, the conservator shall petition the 
circuit court of the county in which he was appointed, or in which 
the parties to the proceeding, or a part of them, reside, asking that 
an order or orders be made, authorizing such sale. 

Sec. 2. The petition aforesaid shall set forth and state the rea-what the per- 
sons why, and the purposes for which, a sale of real estate is ehaVset^orthT" 
deemed necessary or proper, and shall be accompanied by an inven- 
tory or descriptive list of all the real estate owned or possessed by 
such idiot, lunatic or distracted person, together with a statement ■ 
of the accounts of the conservator, showing the disposition of the 
money, property or effects which may have come to his hands 
setting forth also the names of all persons who would be interested 
in the estate, in case of the death and intestacy of the owner thereof, 
all of whom shall be made parties to the proceeding. 

Sec. 3. Upon the filing of the petition aforesaid, a summons on filing peti- 
shall be issued against the persons made parties as aforesaid, and Jo°£ 8 ue mmon3 
which shall be served as in cases in chancery. And in case any Non-resident 
of said parties cannot be found, or reside out of the state, they shall P art ies notified, 
be notified of the proceeding by publication, as, in proceedings in 
chancery against non-residents. 

Sec. 4. The court shall appoint guardians ad litem for infant Guardians ad 
parties, when no guardians shall appear, and also make any and all p2j e ^ r mfant 
orders necessary to bring parties before it, and to a proper and 
speedy disposition of the petition in a manner consistent with the 
facts and the rights of all parties interested, directly or indirectly, 
in the estate to be affected. 

Sec. 5. When all parties as aforesaid shall have been notified of Hearing of case 
the proceeding, the court, upon the hearing of the petition, the t>7 the court.' 
objections thereto, if any are interposed, and all facts with respect 
to the matter thereof, shall, in the exercise of a sound discretion, 
make such order or orders as may appear necessary and proper to 
execute the provisions of this act, and to supply conservators and 
families of idiots, lunatics and distracted persons with means to be 
used for the purposes herein expressed. 

Sec. 6. Orders of sale made by court shall describe the property orders of sale to 
to be sold, and specify the terms of sale and direct the application Jropwty? he 
or use of the money ; and power is hereby vested in said courts to 
make* any and all orders necessary to the security and proper appli- 
cation of the moneys in the hands of conservators. 

Sec. 7. Conservators appointed in foreign states may avail them- Conservators of 
selves of the provisions of this act, by filing a copy of their omgn 
appointment with the clerk of the circuit court, and giving security 
for costs, and by furnishing satisfactory evidence that they have 
given adequate and sufficient security for the faithful and proper 
application of the funds arising from the sale. 

Sec. 7a. Conservators, guardians or committees of any non- Laws 1865, 
resident, insane, idiot, lunatic, or distracted person, appointed in "*" 109 > leb * 16, 
any of the United States, in pursuance of the laws of any such mTysu^and 
state, may commence and prosecute in his or their name as such recover. 



,380 



IDIOTS AND LUNATICS. 



[DIV. XI. 



conservator, guardian, or committee, suits for the recovery of any 
real or personal property, or any interest therein in this state, 
belonging to any such insane, idiot, lunatic, or distracted person, 
or for any injury to any such property in any of the courts of 
record in this state, having jurisdiction of similar cases by persons 
in their own rights. 

Sec. 76. It shall be lawful for any such conservator, guardian, 
or committee, of any non-resident insane, lunatic, or distracted 
person, who shall have obtained or shall hereafter obtain an order 
from any court of record having jurisdiction over such matters in 
any of the United States, in which said guardian, committee, or 
conservator shall have been or shall hereafter be appointed, for the 
sale of any real estate or personal property, or any interest therein 



How may sell 
and transfer real 
estate. 



Notice of peti- 
tion 



Bond of conser- 
vator. 



belonging to such insane, idiot, lunatic, or distracted person, situ- 
ated in this state, upon filing a certified copy of such order for 
record in the office of the clerk of the circuit court of any county 
in this state, in which such property shall be situated, by petition 
to the circuit court of such county, to obtain an order from said 



an 
dian, 



circuit court, authorizing said conservator, guardian, or committee, 
to sell and transfer 'any such property or interest therein, belonging 
to any such idiot, lunatic, insane, or distracted person, and to 
make deeds and conveyances therefor; which deeds and convey- 
ances, executed and acknowledged in pursuance of the laws of this 
state, or of the state in which said guardian, committee, or conser- 
vator shall have been or shall be appointed, shall be effectual in 
law and equity, to pass to the grantee or grantees therein, all 
the right, title and interest of such insane, idiot, lunatic, or dis- 
tracted person therein. Notice of the time and place of present- 
ing said petition to said circuit court shall be given by publication 
in the nearest newspaper for three successive weeks, the first of 
which publication shall be at least thirty days before the time fixed 
for the presentation of said petition, requesting all persons inter- 
ested to show cause why the prayer of said petition should not be 
granted. The said circuit court may, in its discretion, require 
such conservator, guardian, or committee, to file a bond, with 
sufficient sureties, conditioned for the faithful application of the 
money which may be received for any such property, for the benefit 
and to the use of such idiot, lunatic, insane, or distracted person. 



Laws 1851, p. 
98, Feb. 15. 

Married women 
and infants. 



Expenses. 



CONVEYING PATIENTS TO INSANE HOSPITAL. 

Sec. 10. Married women and infants, who, in the judgment of 
the medical superintendent, are evidently insane or distracted, 
may be received and detained in the hospital on the request of the 
husband, or the woman, or parent, or guardian of the infants, 
without the evidence of insanity or distraction required in other 
cases. 

Sec. 11.* The expenses of conveying paupers to the hospital 
shall be paid by the counties in which they reside, and the expense 



DIV. XT.] IDIOTS AND LUNATICS. 381 

of carrying others shall be paid by conservators, husbands, parents, 
or guardians ; and in no case shall any such expense be paid out 
of " the fund for the insane." 

Sec. 12. No person, laboring under any contagious or infectious persons having 
disease, shall be admitted into said hospital as a patient. eases 810 " 8 dl "" 

Sec. 13. In conveying patients to the hospital for the insane, sheriff to em- 
the sheriff may employ one assistant for each patient, and the J r 1 ^ M8iBtttnce » 
compensation to the sheriff shall be five cents per mile mile, going 
and returning, and two dollars per day, computing one day for 
every thirty-five miles travel, on the usual route of the United 
States mail, and one-half of said amount to the assistant; which 
compensation shall be paid by counties, in cases of paupers, and by 
conservators, husbands, parents and guardians in other cases. 

Sec. 14. Clothing for paupers shall be furnished or paid for by clothing, 
the counties in which they resided, and the judge of each county 
court shall furnish all necessary clothing, at the expense of such 
counties; and a certificate of the judge, of the purchase of cloth- . 
ing or goods to be made up for the use of patients, shall be received 
in payment of the county revenue the same as county orders. 

23 



382 WEIGHTS AND MEASURES. [dIV. XII. 




DIVISION XII. 

chap ST i A 08 p WEIGHTS AND MEASURES. 

532. ' ' 

Section 1. There shall be but one standard of measure of 
length and surface, one of weight, and one measure of capacity 
throughout this state, which shall be in conformity with the stand- 
ard of measure, length, surface and weight established by Congress. 
Heaped measure, Sec. 2. All commodities sold by heaped measure, shall be duly 
what shall be. heaped up in the form of a cone, the outside of the measure, by 
which the same shall be measured to the extremity of the base of 
such cone, and such cone to be as high as the articles to be meas- 
ured will admit, 
other measures Sec. 3. The measures used for measuring dry commodities not 
not heaped. heaped, shall be stricken with a straight stick or roller, and of the 

same diameter from end to end. 
Contracts to ccn- Sec. 4. Contracts hereafter to be executed, made within this 
me^ure thi3 state, for any work to be done, or for any thing to be sold, deliv- 
ered, done or agreed for by weight or measure, shall be taken and 
construed to be made according to the standard weight and meas- 
ure thus ascertained. 
Hundred weight Sec. 5. The hundred weight shall consist of one hundred 
and ton. pounds, and twenty such hundreds shall constitute a ton. 

Laws 1855, p. Sec. 5<z. Whenever, any of the following articles shall be con- 
176, Feb. u. tracted for, or sold, or delivered, and no special contract or agree- 
ment shall be made to the contrary, the weight per bushel shall be 
Zmlhel t g hSe a s follows, to-wit : Shelled corn, fifty-six (56) pounds; corn in the 
is no agreement ear, seventy (70) pounds; wheat, sixty (60) pounds; rye, fifty-six 
oweig t. ^.^ p 0un 5s; oats, thirty-two (32) pounds; barley, forty-eight 
(48) pounds; Irish potatoes, sixty (60) pounds; sweet potatoes, 
fifty-five (55) pounds; white beans, sixty (60) pounds; castor 
beans, forty-six (46) pounds; clover seed, sixty (60) pounds; 
timothy seed, forty-five (45) pounds; flax seed, fifty-six (56) 
pounds; hemp seed, forty-four (44) pounds; blue grass seed, fourteen 
(14) pounds; buckwheat, fifty-two (52) pounds; dried peaches, 
thirty-three (33) pounds; dried apples, twenty-four (24) pounds; 
onions, fifty-seven (57) pounds; salt, fifty (50) pounds; scone 
coal, eighty (80) pounds; malt, thirty-eight (38) pounds; bran, 
twenty (20) pounds; turnips, fifty -five (55) pounds; hair, (plas- 
tering) eight (8) pounds; unslacked lime, eighty (80) pounds; 
corn meal, forty-eight (48) pounds ; fine salt, fifty-five (55) pounds. 
Weight of grain Sec. 6. Whenever wheat, rye, Indian corn, barley, buckwheat 
per bushel. Qr Qatg ^^ b e so \^ ^y the bushel, and no special agreement as to 



DIV. XII.] WEIGHTS AND MEASURES. 383 

the weight or measurement shall be made by the parties, the bushel 
shall consist of sixty pounds for wheat, of fifty-four pounds of 
rye, of fifty-two pounds of Indian corn, of forty-four pounds of 
barley, of forty pounds of buckwheat, and thirty-two pounds of 
oats. 

Sec. 7. The following original standards, made in conformity Original stand- 
to the provisions of this chapter, to-wit : a yard, a pound, a liquid cnred t0 by be state 
gallon, and a half bushel, shall be procured by the state sealer of sealer, 
weights and measures, and deposited in a chest in his office, which 
shall only be opened for the sole purpose of comparing such stand- 
ards with the copies hereinafter described, unless by a joint reso- 
lution of the two houses of the legislature, or on the call of either 
house for information, or by the order of the governor for scientific 
purposes. 

Sec. 8. Copies of the said original standards, to be made of Copies for coun- 
such materials as the state sealer shall direct, shall be deposited by ie8 ' *' 
him in the offices of the county sealers of the respective counties 
of this state, at the expense of said counties, who shall severally 
be responsible for the preservation of the copies respectively deliv- 
ered to them. 

Sec. 9. The state sealer shall cause to be impressed on each of Devices impress 
the copies of such original standards, the letter " 1" and such 
other additional device as he shall direct, for the particular county ; 
which device shall be recorded in the state sealer's office and a s 
copy thereof delivered to the respective county sealers. 

Sec. 10. The several county sealers shall compare all weights County sealers to 
and- measures which shall be brought to them for that purpose, weights 6 an 
with the above mentioned copies of such standards in their pos- 
session ; and when the same are found or made to conform to the 
legal standards, the officer comparing them shall seal and mark 
such weights and measures. 

Sec. 11. It shall be the duty of the county sealers of weights county sealers to 
and measures, to compare the copies in their possession once in Se 'seailr^once 
every ten years, with those existing in the office of the state sealer ; in ten years, 
and every county sealer who neglects to have the copies in their 
possession compared as aforesaid, shall pay into the county treasury p ena i ty f or neg- 
fifty dollars for county purposes ; whenever any county sealer fails lect. 
for one month to pay the aforesaid penalty, it shall be the duty of 
the county commissioners' court, to commence suit therefor in theii 
own name, before any justice of the peace of the county, and when 
collected, the same shall be paid into the county treasury for the 
use aforesaid. 

Sec. 12. Each county sealer shall be entitled to receive for his Fees of county 
services, at and after the following rates : For sealing and marking 8ealer * 
every beam, six and a quarter cents; for sealing and marking 
measures of extension at the rate of six and a quarter cents per 
yard; not to exceed twenty-five cents for any one measure; for 
sealing and marking every weight, two cents; for sealing and mark- 
ing liquid and dry measures, if the same be of the capacity of a 



384 WEIGHTS ASB MEASURES. [dIV. XII. 

gallon or more, six and a quarter cents; of less than a gallon, two 
cents ; they shall also be entitled to a reasonable compensation for 
making such weights and measures conform to the standard estab- 
lished by this chapter. 
Penalty for usiog g EC- J 3 jf aI1 y person or persons shall hereafter use any 

weightaand J £ .*..,. . - . , , /. 

measures not weights, measures or beams, in weighing or measuring which shall 
toJSXSdsV notTbe conformable to the standards of this state, established by 
tabiished. this chapter, whereby any purchaser of any commodity or article 

of trade or traffic shall be injured or defrauded, such purchaser 
may maintain an action on the case against the offender; and if 
judgment shall be rendered for the plaintiff, he shall recover five 
times the damages with costs of suit. 
Who shall be' Sec. 1-4. The secretary of state shall be, ex officio, state sealer 

sealers! 1 C ° Un 7 of weights and measures, and the clerks of the county commis- 
sioners' court shall be the county sealers of weights and measures 
for their several counties. 

ACT OF 1861. 
lairs 1S61, p. 

isg, Feb. 2i . Section 1. The secretary of state and the clerks of the several 
, , . county courts in said state * * * are each herebv required as 

Approved stand- J , . , . J \ 

ards to be pro- soon as may be, to procure approved standards, being such as are 
cured. established by the laws enacted by the congress of the United 

' States, with the necessary subdivisions, together with proper beams 
and seals, and all necessary apparatus, including seals for testing 
and correcting cattle and large platform scales. Those procured by 
now paid for. the secretary of state to be paid for out of the state treasury upon 
the warrant of the proper officer, and those respectively procured 
by clerks, to be paid for out of the county treasury of the respec- 
tive counties, upon the order of the countv court. 

Sfrvljor? 00 " Sec - 2 - Ifc sha11 be the dut J of tne said clerks respectively, on 

procurement of the said testing apparatus mentioned in section one 
of this act. to deliver the same to the county surveyors of their 
counties, and to take from said surveyor his receipt therefor. 

Duty of county Sec. 3. It shall be the duty of the said surveyors respectively, 

JSS° r es on the first day of April next, and as soon thereafter as may be, to 
proceed to test each cattle and large platform scale in use in his coun- 
ty; but should the said first day of April pass before any of the said 
surveyors shall be supplied with the proper means of testing, they 
shall proceed to do so so soon after being supplied as may be. If 
the said scales so tested shall be found correct, the surveyor shall 

sealed. thereupon seal or mark the same, and shall also give to the owner 

of said scales a certificate to that effect; but should the scales be 

when not to be found incorrect, then the seal shall not be applied, or any certifi- 
cate given, and the owner of the said scales shall pay to the said 
surveyor, for each inspection and test of scales, the sum of five 
dollars, and mileage at the rate of a reasonable price for the trans- 
portation to and from the county seat, of the necessary apparatus 
for making the test. 



sealed 

Fees of surveyor. 



DIV. XII.] WEIGIITS AND MEASURES. 385 

Sec. -1. The said surveyors shall keep in their respective offices Surveyor to keep 

i. i -iii i ii i i • n i • 1'iT ^ook t0 register 

a well-bound book, to be called the register or scales, in which he scales, 
shall keep a correct entry of the names of all owners of scales, the 
location of the same, and of the time and result of each test, as 
made by him; and where scales are found incorrect, they shall be Condemned 
in said register marked condemned, which shall be their condition 
until corrected. 

Sec. 5. If any owner or keeper of cattle or large platform scales using condemn 
shall presume to weigh any article or articles, stock or commodity, cd scales, 
upon scales that have been marked condemned, which said articles, 
stock or commodities are to be sold, bought or paid for on and by 
such weight, the said owner or keeper shall, for each offence, forfeit Penalty, 
the sum of one hundred dollars, to be recovered in an action before 
a justice of the peace, or any court of competent jurisdiction, one 
half to the use of the informant, and the other half to the use of 
the county where such scales are located. 

Sec. 6. After any scale shall have been once inspected and when tested are 
tested, and a certificate of correctness granted, it shall be presumed P ^ umed cor " 
to remain correct until the contrary fact be made to appear; but 
if at any time any party interested in the weight of any article 
weighed upon said scales, shall question the correctness of said 
scales as a weighing apparatus, be shall have the right thereupon 
to give notice to the surveyor, whose duty it shall be thereupon, 
upon tender ol his fees, to proceed immediately to test said scales, 
and if found correct, it shall be at the expense of the party 
requesting the test; but if the scales should, on such test, be found 
incorrect, then the same shall be marked and registered condemned, 
and the informer shall recover, in an action before any justice of 
the peace or court of competent jurisdiction, all costs of procuring 
such inspection, together with cost of suit of the owner or keeper 
of said scales ; and the fees in such cases shall be the same as here- 
inbefore provided for. And should any surveyor, on notice of 
complaint as aforesaid, fail and refuse to make the desired inspec- 
tion for the space of ten days after a tender to him of his reason- 
able fees, he shall forfeit the sum of fifty dollars for each offence 
under the provisions of this act in reference to forfeiture against 
owners and keepers, as hereinbefore provided. 

Sec. 7. All fees to the said surveyors respectively for a first test Fees of survey, 
of such scales, if not paid by the owner or keeper of the scales, how recovered - 
may be recovered in an action before a justice of the peace, or 
any court of competent jurisdiction, at the suit of such surveyor 
or against the owner or keeper of such scales, together with costs. 

Sec. 8. The provisions of this bill shall not apply to any scales 
which weigh less than four tons. 



366 



MISCELLANEOUS. 



[DIV. XIII 



DIVISION XIII. 

MISCELLANEOUS. 

DOGS. 



LAWS 1869, P. 
165, April 9. 

y ' 

Board of super- 
visors may levy 
tax on dogs. 



Duty of county 
clerk. 



Dogs to be listed 
by assessor. 



County clerk to 
return tax. 



How collected. 



TAXATION. 

Section 1. The several county courts and boards oi supervisors 
of the several counties in this state may in their discretion respect- 
ively levy such tax upon dogs in their several respective counties 
as they may see proper, not exceeding the sum of two dollars upon 
each dog, such levy to be made by order, resolution or ordinance, 
to be entered upon the minutes of such court or board at the time 
the same is made, and it shall thereupon be the duty of the clerk 
of the county court in any such county where such order, resolu- 
tion or ordinance is made, to enter the same upon the minutes of 
such court or board, and he shall thereupon give to the county 
assessor, or all town assessors, as the case may be, notice of the 
making of said order, resolution or ordinance, by delivering or 
causing to be delivered to him or them written or printed notice of 
such ordinance, order or resolution. 

Sec. 2. It shall be the duty of such county assessor or such town 
assessors, as the case may be, in taking lists of taxable property, to 
to require of every person or persons liable to taxation or assess- 
ment, to list with his, her or their property any dog or dogs of 
which he, she or they may be the owner or owners, or which shall 
resort or frequent the premises occupied by such person or persons, 
and the respective assessors aforesaid may require answers in refer- 
ence to the ownership of or resorting or frequenting such premises 
by dogs, to be given under oath, which oath shall be administered 
by such assessor. 

Sec. 3. It shall be the duty of the respective county clerks 
where such listing shall be made, to extend on the respective tax 
book or books for such county or towns, the sum so levied by such 
court or board upon such dog or number of dogs as appear so listed 
to each person or persons aforesaid, with the other taxes assessed 
against such person or persons, and the respective amounts shall be 
extended at the rate of such levy of said court or board against 
each dog so listed, and the same shall be collected as other taxes 
by the respective collectors. 



DIV. XII [.] MISCELLANEOUS. 387 



Sec. 4. If any such sum so extended shall be returned by such Collector to can 
collector unpaid, it shall thereupon be the duty of such collector for Ulx ' 
to call upon the person or persons against whom such sum shall be 
extended, and unless such person or persons shall make it satisfac 
torily appear to such collector that the dog or dogs upon whicl 
such listing was made is or are dead, or removed beyond the limit 
of the county, permanently to remain, it shall be the duty of such 
collector to cause the warrant of some justice of the peace of said Y*™** i8fmed 
county to issue for the apprehension and arrest of such person or 
persons having so listed such dog or dogs, and having so failed to 
pay the tax upon the same, and said delinquent or delinquents shall 
be forthwith brought before some justice of the peace for trial, and Proceedings ba- 
it shall be the duty of such collector to cause the proper proofs to ° re Ja8 lce ' 
be made before such justice, and thereupon such delinquent 01 
delinquents shall be adjudged guilty of a misdemeanor, and shall 
enter against him, her or them a fine of not less than five or more 
than ten dollars, and the defendant or defendants shall stand com- 
mitted until such fine and the costs of the proceedings shall be 
paid. 

Sec. 5. The word dog, in this act, shall be held and construed Word "dog" do 
at all times and places to mean an animal of the canine species. fined " 

Sec. 6. All taxes hereby provided for shall be paid and accounted Taxes, how ap- 
lbr by collectors when collected to the proper officer authorized phetL 
by law to receive the same, and shall be applied for school, road 
or county purposes, as said courts or boards of supervisors may 
determine. 

Sec. 7. In all proceedings for the collection of fines under the proceedings, 
provisions of this act, the people shall be plaintiffs, and it shall be 
the duty of said collector to receive said fines when paid, and pay Fines to be paid 
over and account for the same as is herein directed with reference 0Ter ' 
to taxes. 

DAMAGES DONE BY DOGS. 

Laws 1853, p. 

Sec. 1. The owner of any dog or dogs shall be liable in an 124 ' Feb * 1! * 
action on the case for all damages that may accrue to any person or Owner of dog h.-v 
persons in this state, by reason of such dog or dogs killing, wound- 
ing or chasing any sheep or other domestic animal, belonging to 
such other person or persons ; and when the amount of such dam- Suit f«r. 
ages does not exceed one hundred dollars, the same may be recov- 
ered by an action before a justice of the peace. (1) 



(I) The keeper of a dog accustomed to bite sheep, if he lias notice of the habit, 
is liable for the injuries done by his dog, the notice of a tingle act is sufficient. Kittredgt 
t. Elliott, 16 N. H. R., 77. 

The owner of a dog of a miscJiievous and ferocious disposition, if he per- 
mit it to go at large knowing it has done mischief in the destruction of one kind of animals, 
will be liable for the destruction of other animals of a different species by the same dog. 
Pickering v. Orange, 1 Scam. R., 338: Ibid, 493. 

If a dug becomes mischievous, and inclined to injure property, his owner is bound to re- 
strain him on the first notice, and is liable for any injury he may thereafter commit. Wool/ 
t. Chakler, 31 Conn. R., 121 



388 



E3TBAYS. 



[DIY. XIII. 



Chasing sheep, 
dog may be 
killed. 



Sec. 2. If any person shall discover any dog or do£s in the act 
of killing, wounding or chasing sheep in any portion of this state, 
or shall discover any dog or dogs under such circumstances as 
to satisfactorily show that such dog or dogs has been recently 
engaged in killing or chasing sheep for the purpose of killing them, 
such person is authorized to immediately pursue and kill such dog 
or dogs. (1) 



ESTEAYS. 



Section 1. The counties which have adopted or shall hereafter 
adopt township organization, the town clerk of every town thereof 
shall provide a book for the purpose of registering tiie mark, brand 
and color of any animals enumerated in chapter fifty [thirty-nine] 
of the revised statutes, taken up as an estray, which book shall be 
open at all times to inspection by all persons interested therein, and 
shall be deemed a part of the records of said town. 

Sec. 2. Any person who shall take up any estray according to 

^| 1 8 stered iQ fiTe the provisions of the act to which this is an amendment, shall cause 

to be registered in the book provided in the foregoing act, the 

marks, brand and color of said estray. within five days from the 

time of such taking up. 



Lairs 1S55. p. 
175, Feb. 15. 

Town clerks to 
register brands. 



Animals to be 



(1) ' Dogs are considered as a base property, and entitled to Jess consideration 
and protection than'property in other domestic animals ; hence, any person may kill a mad 
dog, or one that is justly suspected of being so, or that is known "to have been" bitten by a 
dog which was mad. And a dog which haunts the premises of another, and, by barking and 
howling, becomes a nnisance, if he cannot otherwise be prevented, may be killed. A fero- 
cious dog, accustomed to bite mankind, is a common nuisance, and, if found at large, maybe 
destroyed by any one. The keeping of such a dog is wrongful, and prima, facie the owner 
is liable to any person injured. Whether such a "dog was before mischievous or nor, or his 
owner knew it or not, if found at large doing or attempting to do mischief, or it is absolutely 
necessary for the preservation of property, he may be killed ; and the owner of such dog is 
liable if he bite a person in consequence of being accidentally trodden upon, or become irri- 
tated by another, or if he attack or injure a trespasser. Such a dog is a dangerous instru- 
ment for protection, and placing him lor that purpose can only be justified in cases where 
the placing of concealed instruments may be justified, to prevent a felony. Nor can such 
use of him by the owner, under his personal direction, be justified where a like degree of 
injury may not be inflicted lawfully by a different instrument. Although a dog, by entering 
alone on the land of another, and doing mischief, cannot subject his owner to an action of 
trespass for so doing, as cattle and other animals which are inclined to rove and prey upon 
crops may do, yet, if the owner trespass and his dog attend him, and do mischief unbidden, 
that action will lie for the injury. Woolfx. Chakler, 31 Conn. R., 121. 

A. dog which is accustomed to attack and bite other dogs without being in- 
cited to do so, is a vicious animal whether it has been trained to such habits or not; and the 
owner of such a dog, who knows his character and suffers him to go at large, will be answer- 
able for the damage he causes and the injury he commits on other dogs lawfully and 
peaceably on the premises where he is. Wheeler v. Brant, 23 Barb. R., (N. T.). 324. But 
the cases in which dogs have attacked human beings, although trespassers, and the owners 
have been held liable, are not applicable to the attack of one dog upon another. It is not a 
rule thau when two dogs fight, and one is killed, the owner can have satisfaction for his lots 
from the owner of the victorious dog. Wiley v. Slater, 22 Barb. R., 506. 



INDEX. 






AFFIDAVIT. Poo Form?. 

ANIMALS. See Counties and County Af- 
fairs, and Township Organization. 

ASSESSMENT AND COLLECTION OF 
TAXES. See Revenue. 

BONDS. See Forms. 

Railroad and improvement 70, 93 

For building Court-house 92 

In aid of railroads and other corpora- 
tions 91 

COMMI SIONERS OF HIGHWAYS. 
See Roads and Bridges. 

COUNTIES AND COUNTY AFFAIRS...56-94 

County Commissioners' Courts — 56 

County Courts— Act of 1849 6-1 

Railroad and improvement bonds- 
Act of 1865 70 

Railroad indebtedness— Act of 1869... 73 

County Normal Schools..... 78 

Work-houses 79 

Removal of County Seats 80 

Fees and salaries 87 

Division of counties into classes 87 

Cook County Commissioners 89 

Animals— Domestic prohibited from 

running at large 90 

Prevention of cruelty to animals 91 

Marks and brands 91 

Bonds for building Court-house 92 

Bonds in aid of railroads or public 

improvements 93 

Bonds in aid of railroads and other 
corporations 94 

COUNTY TREASURERS AND COUNTY 
FUNDS 95-100 

DOGS 386-388 

Taxation of 386 

Damage done by 387 

DRAINAGE 335-340 

ESTRAYS 368 

ELECTIONS 17-55 

Time of holding for certain officers.... 18 

Election precincts 25 

Judges and clerks of elections 21 

Oath of judges and clerks of election 22 

Ballot boxes and poll books 23 

Constables appointed to attend elec- 
tions — order 23 

Notice of election 24 

Conducting:elections— returns 25 

Qualification of voters 29 

Canvassing votes— Certificate of elec- 
tion 32 

Offenses and penalties 35 

Contesting elections 39 

Resignations and vacancies 43 

To what elections the act may apply.. 45 

Repeal 46 

Constitutional provision 46 

Registry of voters 46 

Recorders of deeds, election and, du- 
ties of 52 

FORMS. 

Notice of election 24 

Clerk's entry in poll books 28 

Affidavit of voter whenchallenged.31-85 
Affidavit of witness for challenged 

voter 31, 85 

Oath of office prescribed by^constitu- 

tion 64, 95 

Schedule of property subject to taxa- 
tion 110 

Affidavit of assessor to return 129 

Bond of town collector 142 



Bond of county collector 145 

Oath of county collector 146 

Affidavit of collector to delinquent list 159 

Order for tax sale 161 

Tax deed 170 

Petition to county court for submis- 
sion of question of township organ- 
ization 191 

Report of proceedings of Commis- 
sioners appointed to divide county 

into towns 193 

Notice by Clerk for first town meet- 
ing 193 

Notice by twelve Freeholders calling 
town meeting in default of annual 

meeting 197 

Agreement by Supervisors and As- 
sessors incase of division of town, 
concerning disposition and appor- 
tionment of real estate 198 

Deed of conveyance by Supervisors 
and'Assessors, conveying real estate 

where town is divided 198 

Proceedings of Supervisors and As- 
sessors in apportioning property in 

case of division of towns 200 

Notice by Supervisors to other officers 
to meet and apportion property in 
case of division or alteration of 

town 200 

Notice for annual town meeting...201, 202 
By-laws to prohibit cattle and other 

animals running at large 206 

Notice by Justice to owner of ani- 

mals'impounded 207 

Same where owner is not known 207 

Docket entry on hearing complaint 
against owner of impounded ani- 
mals 208 

Pound-master's notice of sale 209 

Statement to be filed in the office of 
Town Clerk for special town meet- 
ing 211 

Notice for holding special town meet- 
ing 211 

Oath of Moderator of town meeting.. .213 
Minutes of proceedings of town meet- 
ings 214 

Oath to person challenged at town 

meeting 216 

Oath of witness to prove residence of 

person challenged 217 

Proclamations of opening and ad- 
journing polls at town meetings 218 

Poll list kept at town meeting 219 

Statement of result of canvass in 

minutes of meeting...'. 219 

Notice of Town Clerk drawing lots in 
case of a tie vote between candi- 
dates 220 

Memorandum of decision of tie 

vote 220 

Notice by Town Clerk to person 
elected to town office whose name 

is not on poll list 221 

Oath of town officer 221 

Supervisor's certificate of election 222 

Town Collector's bond 222 

Instrument executed by .constables 
and sureties for performance of du- 
ties 224 

Warrant of appointment by Justice, 
Supervisor and Town Clerk to fill 
vacancy 227 



390 



INDEX 



Supervisor or Town Clerk's approval 

of same 225 

Oath of Supervisor and other town 

officers on going out of office 226 

Notice by town Clerk to one appoint- 
ed to fill vacancy 228 

Eesignation of town officer 22a 

Supervisor's bond and Clerk's ap- 
proval of same 229 

Supervisor's book— how kept 230 

Certificate of justice and Town Clerk 
to be entered in Supervisor's book 
upon examination of his accounts..230 
Entry of filing paper by Town Clerk..231 
Certificate of Town Clerk to accom- 
pany book of entries of voter for 
raising money recorded in town 

book 232 

Certificate of Town Clerk to copies of 

papers and records 232 

Certificate of Town Auditors deliver- 
ed with accounts'audited 233 

Bill against town and affidavit of cor- 
rectness 234 

Certificate of Auditors allowing 

claims against a town, etc 231 

Request for special meeting of Board 

of Supervisors 241 

Notice to each Supervisor of special 

meeting of the Board 241 

Notice of special meeting of board of 
supervisors for publication in news- 
paper 241 

Report of committee 242 

Written acceptance of office of county 

treasurer 247 

County treasurer's bond 247 

Notice of sale by supervisor of real 

estate owned by a town 251 

Deed of conveyance by town 252 

Petition to vote for or against domes- 
tic animals running at large in a 

county 253 

Same in a town 254 

Appeal from decision of commissioner 

of Canada thistles _ 257 

Report of commissioner of Canada 

thistles 258 

Order of commissioners of highways 
for ascertaining a road imperfectly 

described or not recorded 266 

Order dividing town into road dis- 
tricts 269 

Bond of treasurer of commissioners of 

highways 271 

Account of commissioners of high- 
ways rendered to town auditors 271 

Order of commissioners assessing high 

way labor and road tax 274 

List of assessment of highway labor. ..274 

List of assessment of road tax 275 

Notice of assessment of property tax..276 
Overseer's list of inhabitants liable to 

work on highways 277 

Appointment of "overseers of high- 
ways in case of vacancy 277 

Notice to person to work on highway 27 S 

Summons for refusing to work 2S0 

Execution for collecting fine 280 

Affidavit of overseer of highways 

upon return of list to supervisor 282 

Overseers annual account 283 

Petitions for alteration, widening and 

vacation of road 290 

Petition for new road 291 

Affidavit of posting copies of road peti- 
tion 293 

Notice of commissioners for time and 
place fixed for examination of route 



and^hearing reasons for or against 
road 294 

Notice of adjournment of road meet- 
ing 295 

Memorandum of decision granting or 
refusing prayer of petition 295 

Surveyors' report of survey of road. ..296 

Surveyor's report of survey of altera- 
tion of road 296 

Agreement and release of damages in 
laying out a road 269 

Commissioner's certificate and appli- 
cation for a jury to assess damages..299 

Notice to land owners of application 
for jury 300 

Justice's notice to land owners to 
prove damages 301 

Verdict of jury assessing damages 302 

Commissioner's notice of final meet- 
ing 303 

Order laying out, altering or widen- 
ing highway where damages as- 
sessed 304 

Same where damages are released are 
agreed upon 305 

Order of commissioners vacating road 306 

Order ef commissioners of adjoining 
towns in establishing, altering, 
widening or vacBting a road on 
county or town lines 311 

Petition for appeal from decision ot 
commissioners 312 

Notice of appeal to commissioners and 
petitioners 313 

Affi lavit of sen-ice of notice of appeal 314 

Order of supervisors on road appeal.— 
decision in favor of road '....315 

Same — decision refusing road 315 

Road appeal bonds 318 

Contract between commissioners of 
adjoining towns for building bridge 320 

Notice to commissionars of adjoining 
towns to join in performing bridge 
contract 321 

Petition to county board for an appro- 
priation to aid in building or repair- 
ing a bridge or road 322 

Petition to supervisor for special town 
meeting to vote on question to bor- 
row money to build a bridge 323 

Contract for building a bridge and 
notice of letting same 324 

Notices for removal offences 325 

Petition to supervisors of two or more 
towns to build a bridge 330 

Estimate of supervisors of expense 
etc., of building a bridge 330 

Supervisors bond in regard to bridge 
funds 332 

Application to commissioners to lay 
out a drain 335 

Notice to owner or agent of applica- 
tion 335 

Notice of meeting of commissioners to 
determine upon application 336 

Decision of commissioners noted on 
back of application 338 

Appeal from decision of commission- 
ers and notice of same 339 

Statement of supervisor, justice and 
town clerk of decision on appeal 340 

Agreement to divide and maintain di- 
vision fence 348 

Notice to adjoining owners to choose 
fence viewers to settle dispute 349 

Submission of dispute to two fence 
viewers 319 

Decision of fence viewers in relation 
to dispute 350 



INDEX. 



391 






Same when two cannot agree and an- 
other is selected 350 

Notice to adjoining owner to contrib- 
ute to erection or reparation of divi- 
sion fence 351 

Appraisal of damages by fence view- 
ers for neglect to make or repair 

fences 351 

Notice by adjoining owner of inten- 
tion to remove his share of division 

fence 352 

Notice to person to make or repair 

fence injured by fire, etc. 353 

Notice to railroad company to build 

or repair fence - 356 

Declaration of intention to form town- 
ship insurance company 358 

Charter of company 359 

Bond of treasurer or secretary of com- 
pany 360 

Indenture binding poor child by 

overseer of the poor 396 

IDIOTS AND LUNATICS 375-381 

Sale of real estate 378 

Conveying patients to insane hospi- 
tal -380 

INCLOSURES AND FENCES 341-357 

Common fields 341 

Fence regulations 343 

Division fences 347 

Fencing railroads 353 

MUTUAL FIRE INSURANCE COMPA- 
NIES 358-363 

OATH. See Forms 

OFFICERS. See Elections and [Town- 
ship Organization. 

PAUPERS 364-374 

Act of 1854 369 

Act of 1855 371 

Act of 1869 371 

Act of 1872 373 

REVENUE 101-190 

Property subject to taxation 101 

Property exempt from taxation 102 

Rules for valuing personal property...l04 

Rules for valuing real estate 105 

Personal property— when listed 106 

Who shall list and what listed 106 

Where listed and assessed, and what 
held to be personal property— man- 
ner of listing 107 

Form of schedule 110 

Rules for listing credits 112 

Rules for listing and valuing the 
property and business of banks, 
bankers, brokers and stock job- 
bers 113 

Pawnbroker 114 

Listing capital stock of corporations 

and franchises of persons 114 

State and National banks 115 

Manner of listing and valuing the 

property of railroads 117 

Telegraph companies' return 121 

Penalty 122 

Real property asjof what time listed— 

who liable for tax 122 

Appointment of Assessors and Depu- 
ty Assessors 125 

Oath and duties of Assessors— assess- 
ment of real and personal pro- 
perty 126 

Review of assessment by Town Board 
in counties under township organ- 
ization 127 

Return of Assessor to County Clerk....l28 
Pay of Assessors and Deputy Asses- 
sors 129 

Duties of Clerk on return of assess- 
ment books 130 



Equalization of assessments by Coun- 
ty Board 130 

Report of assessment by the Clerk to 

the Auditor for equalization 132 

State Board of Equalization 133 

Rates of taxation 138 

For State purposes 138 

For county purposes 139 

For all other purposes 139 

Collector's books — extending rates ....139 
Qualification of town and district 

collectors 142 

Delivery of Collector's books— war- 
rants 143 

Appointment of collectors in coun- 
ties not under township organiza- 
tion 144 

Vacancies and resignations 14i 

Treasurer ex-officio collector 145 

Manner in which taxes are to be 

collected 148 

Sworn statements of collections to be 

made— payments 152 

Return of town and district col- 
lectors to the county collector 153 

Return of delinquent special assess- 
ments 155 

Advertisement for judgment and 

sale 156 

Judgment 160 

S-le of delinquent lands 163 

Certified copy of sale lists to be sent 

to auditor 166 

Redemption 166 

Tax deeds 168 

Forfeited property 172 

Final settlement of county collector....l73 
Partial settlement of county collector 175 
Final settlement of county collector 

for state taxes 176 

Liens of taxes 177 

Who not eligible as bondsman 179 

Liability on bonds 179 

Sale of real estate on execution in be* 

half of the State — redemption 180 

Double payment and assessment • 

refunding 181 

When records are destroyed 182 

Duties of auditor 182 

Omitted property— saving clauses 184 

Oaths, who .may administer 186 

Penalties of officers 186 

County to furnish books and blanks. ..187 
County funds, manner of keeping ac- 
counts thereof. 187 

Definitions 188 

ROADS AND BRIDGES in counties 
under Township organization261-333 

Public highways defined 261 

Law of the road 261 

Commissioners of highways, duties of 263 

Highway labor and road tax 273 

Regulations and penalties 285 

Altering, widening, vacating and lay- 
ing out roads 290 

Damages, mode of ascertaining 296 

Private roads 308 

Roads on county and town lines 310 

Appeals 312 

Bridges 319 

Miscellaneous provisions 323 

Erection and maintenance of bridges 

by two or more towns 330 

SUPERVISOR. See Township Organ- 
ization. ' 

TABLE OF CONTENTS 9 

TOWNSHIP INSURANCE COMPANIES. 
See Mutual Fire Lnsubance Compa- 
nies. 



392 



INDEX. 



TOWNSHIP ORGANIZATION" 101-260 

Proceedings to adopt township organi- 
zation 191 

Powers-and rights of towns as bodies 

corporate 195 

Alteration of boundaries and division 
of towns, effect thereof on their cor- 
porate rights 196 

Town meetings and powers of elec- 
tors 201 

Special town meetings 204 

Method of conducting town meetings 212 

Qualification and tenure of office 221 

Vacancies in town offices and the 

manner of filling them. 227 

Supervior, duties of. 229 

Town clerk, duties of. 231 

Board of auditors, of town accounts.... 232 



Board of health .\ 235 

Compensation of town officers.... 236-259 
Legal proceedings in favor of and 

against towns 227 

Powers and rights of counties as 

bodies corporate 23$ 

Board of supervisors 240 

County treasurer 246 

Miscellaneous provisions ...249 

Authority of towns to sell and convev 

real estate ..251 

Animals running at large 252 

Male animals running at large 2o§ 

Canada thistles 256 

TOWNSHIP ORGANIZATION SYS- 
TEM 11, 15 

WEIGHTS AND MEASURES 382-386 




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